What is Judicial Review?
Judicial review is the doctrine in democratic theory under which legislative and executive action is subject to invalidation by the judiciary.
Legislature, Executive and Judiciary are three organs of the political system and a system of checks and balances keeps them working in coordination with each other in a healthy manner.
Judicial Review in the Indian Context:
- The provision of judicial review has been adopted in the Indian constitution from the constitution of the United States of America.
- In the Indian constitution, Judicial Review is dealt with, under Article 13.
- Judicial Review implies that the Constitution is the supreme power of the nation and all laws are under its supremacy.
What does Article 13 states?
- All the post constitutional laws, after the coming into force of constitution, if differ from it in all or some of its provisions then the provisions of constitution will prevail & the provisions of that post constitutional law will hide till any amendment in constitution relating to the same matter. In such situation, the provision of that law will again come into force (the Theory of Eclipse).
- In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution; otherwise, the laws and amendments will be deemed void-ab-initio.
- In such situations, the Supreme Court or High Court interprets the laws as if they are in conformity with the constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with Constitution is considered void.
What is Ninth Schedule and what are issues related with it?
The first amendment to the Indian Constitution added the Ninth Schedule to it. It was introduced by the Nehru Government, on 10 May 1951 to address judicial decisions and pronouncements especially about the chapter on fundamental rights. Nehru was also very clear on the purpose behind the first amendment. The state wanted to pursue nationalisation, take away lands from the zamindars, re-distribute them, and make special provisions for the socially and economically backward.
Despite having architected the Constitution, Nehru was not confident that the laws made to pursue these special interests of the state would stand up to judicial scrutiny on account of being discriminatory.
The First Amendment that brought in Articles 31A and 31B conferring upon the state the right to make laws to acquire private property and to deem such laws as not being discriminatory and to further protect all such laws from any judicial review by creating something called the Ninth Schedule. It is interesting to note that the origins of the Ninth Schedule lie in land acquisition by the state, given the current political debate on SEZs and Singur, Nandigram.
Since the First Amendment, the Ninth Schedule has been relied upon to amend the constitution multiple times over. The 4th amendment inserted six acts to the 9th schedule. The 17th amendment added 44 more acts. The 29th amendment brought in 2 acts from Kerala. The 34th amendment in 1974 added 20 more land tenure and land reforms laws enacted by the states.
In 1975, Indira Gandhi’s infamous abuse of executive power leading up to emergency saw the 39th amendment adding certain central enactments. 1976 saw the 40th amendment even more to the 9th schedule. The 47th amendment in 1984 added more, and then in 1990 the 66th amendment gave more protection to land ceiling acts.
The 76th amendment to accommodate Tamil Nadu Government’s legislation to provide for reservations to the level of 69 percent for SC/ST and OBCs followed. What takes the cake however is the 78th amendment, which was about not just immunity to laws in 9th schedule, which was suspect, but amendments to those laws and making those amendments immune. Since then there were absurd laws from Sugarcane supporting price to the New Delhi Urban Zoning Laws all clamoring for an exalted spot in the much abused Ninth Schedule.
SC judgement related to Ninth Schedule:
In a landmark ruling on 11 January 2007, the Supreme Court of India ruled that all laws (including those in the Ninth Schedule) would be open to Judicial Review if they violated the basic structure of the constitution. Chief Justice of India, Yogesh Kumar Sabharwal noted, “If laws put in the Ninth Schedule abridge or abrogate fundamental rights resulting in violation of the basic structure of the constitution, such laws need to be invalidated.”
The Supreme Court judgment laid that the laws placed under Ninth Schedule after April 24, 1973 shall be open to challenge in court if they violated fundamental rights guaranteed under Article 14, 19, 20 and 21 of the Constitution.
Impact of the Judgment:
The Judgment ended up the controversy behind the Ninth Schedule largely and was successful to put a bar on political intentions of keeping certain sensitive issues out of the reach of Judicial Review for narrow political gains. The landmark judgment was successful in strengthening the democratic base of the society and bringing into the realm of justice, unfair acts of misuse of the provision of the ninth schedule in the Constitution.