Amendment of constitution and the 9th Schedule

What is Amendment of Constitution?

An amendment of the Constitution refers to a formal change or addition made to a constitution, which is the fundamental legal document outlining the structure, powers, and principles of a government. In simple terms, it’s a way to update, correct, or improve the Constitution to reflect changing values, needs, or circumstances of a country. Article 368 of the Constitution outlines the procedure for amending it, allowing Parliament to make changes. These amendments are often necessary to adapt the constitution to evolving circumstances while upholding its core principles.

Procedures to Amendment

1. Initiation : an amendment bill can be introduced in either of the houses, Lok Sabha or Rajya Sabha, by a minister or any private member.
2. Parliamentary process : the bill must be passed by a special majority in both houses. A majority of the total membership of the House, and Two-thirds majority of members present and voting.
3. State Ratification (if applicable) : if the amendment seeks to change federal provisions (like the distribution of powers between the Union and states), it requires ratification by at least half of the state legislatures by a simple majority.
4. President Assent : then the bill is presented to the President for assent, which is mandatory. 
5. Notification : After the President’s assent, the amendment is officially notified and becomes a statute.

Types of Amendment

1. Simple Majority Amendment: Not covered under Article 368. These are not formal constitutional amendments in a strict sense. They’re passed like ordinary laws.
   Features:
   – Requires more than 50% of members present and voting in either house (Lok Sabha & Rajya Sabha).
   – No special majority required.
   – No state ratification needed.President’s assent is required like in any ordinary law.
   
   Example: Formation of new states (e.g., Telangana in 2014), Changes in state boundaries or names, Admission or establishment of new states (Article 2 & 3), Salaries and allowances of MPs, Rules of procedure in Parliament Citizenship provisions (Schedule 1)
2. Special Majority Amendment: Amendments requiring a special majority in Parliament address provisions like federal structures. This is the most common method, under Article 368(2).
   Features:
   – Introduced in either House of Parliament.
   – Must be passed by:Majority of total membership of the House: Two-thirds of the members present and voting has to be passed separately by both Houses.
   – No need for state ratification.
   – President must give assent (no veto power here).
   
   Example: Amendment of Fundamental Rights (except those affecting federal structure), Amendment of Directive Principles of State Policy, Changes in the powers of Parliament and the President, Provisions related to the election system of Lok Sabha & Rajya Sabha (not affecting federal features).
3. Special Majority with Ratification: Some amendments necessitate a special majority in Parliament and ratification by half of the state legislatures. This is the most rigid form of amendment. Used when federal features of the Constitution are involved.
   Features:
   – First passed by special majority in both Houses of Parliament.
   – Then needs ratification by at least 50% of the state legislatures.
   – Only simple majority needed in state legislatures (not special).
   – After that, sent to President for assent (mandatory).
   
   Examples: Election of the President (Article 54 & 55), Representation of states in Parliament (Article 82, 170), Distribution of legislative powers between Union and States (Schedule 7), Powers of the Supreme Court and High Courts, Any amendment to Article 368 itself.

The 9th Schedule

The 9th Schedule was added to the Constitution by the First Amendment Act, 1951. It was created to protect certain laws from being challenged in courts for violating Fundamental Rights, especially the Right to Property (which was a Fundamental Right back then under Article 31). This was done in response to the Supreme Court’s decision in the Shankari Prasad case, which had ruled that laws enacted by Parliament could be challenged if they violated fundamental rights. The Ninth Schedule was created by adding new Article 31B, along with Article 31A, to protect land reform laws and abolish the Zamindari system. 

Purpose: The Ninth Schedule was initially intended to shield land reform laws from being struck down by the courts on the grounds of violating fundamental rights, particularly property rights.

Features :

1. Laws placed in the 9th Schedule cannot be challenged in court for violating Fundamental Rights (originally).
2. The idea was to fast-track social justice by avoiding legal delays.

Criticisms: The Ninth Schedule has been criticized for potentially undermining the principle of judicial review and for creating a lack of transparency and accountability, as it can shield laws from scrutiny that might otherwise be subject to legal challenges.

The Ninth Schedule is not a fixed entity. Laws can be added to or removed from the schedule through constitutional amendments. This means that the scope and impact of the Ninth Schedule can change over time.

Article 368. Power of Parliament to amend the Constitution and procedure therefore

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:Provided that if such amendment seeks to make any change in–
(a)article 54, article 55, article 73, article 162 or article 241, or
(b)Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c)any of the Lists in the Seventh Schedule, or
(d)the representation of States in Parliament, or
(e)the provisions of this article.the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
(3) Nothing in article 13 shall apply to any amendment made under this article.
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

Case laws

I.R. Coelho v. State of T.N.

Facts: In 1999, a five-judge Constitution bench reviewed cases where laws, initially declared unconstitutional, were later protected by their inclusion in the Ninth Schedule of the Constitution. The bench specifically considered the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, which the Supreme Court had previously invalidated in the case of Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu (1972). This law was later added to the Ninth Schedule through the Thirty-fourth Amendment Act in 1974.Similarly, the Calcutta High Court had ruled Section 2(c) of the West Bengal Land Holding Revenue Act, 1979, as arbitrary and unconstitutional. However, this section was also protected by the Ninth Schedule via the Sixty-sixth Amendment Act in 1990.The five-judge bench referenced the Supreme Court’s earlier ruling in Waman Rao & Ors. v. Union of India & Ors. (1981), which stated that laws added to the Ninth Schedule after April 24, 1973—the date of the Kesavananda Bharati judgment—could still be challenged if they violated the basic structure of the Constitution, particularly Articles 14, 19, and 21. Due to the complexities surrounding these amendments and the interpretation of the Waman Rao precedent, the matter was referred to a nine-judge bench for a comprehensive re-evaluation and definitive clarification of the Supreme Court’s position. Issue: Whether, following the Keshvananda Bharati judgment, laws placed in the Ninth Schedule could be shielded from judicial review, even if they were deemed to violate the fundamental structure of the Constitution? Judgement: The Supreme Court emphasized the judiciary’s role in protecting fundamental rights. It clarified that Article 368, which deals with constitutional amendments, does not grant the legislature the same power as the original Constituent Assembly. Article 368 is limited by the ‘basic structure’ doctrine, meaning that no law, including those in the Ninth Schedule, can be protected from legal challenge if it violates this fundamental principle.The judgment highlighted the importance of the basic structure, stating that any law or amendment that contradicts Part III of the Constitution, including those in the Ninth Schedule, is subject to judicial review and can be invalidated.Introducing the ‘effect and impact’ test, the Court stressed that the validity of an amendment should be assessed based on its consequences for the Constitution, rather than the specific provision being amended. All amendments made after April 24, 1973, must conform to the essential features of the Constitution, particularly Articles 14, 19, and 21.Furthermore, the Court affirmed that judicial review is a fundamental aspect of the basic structure, meaning that no law can escape scrutiny. While the validity of the Ninth Schedule was upheld, the Court made it clear that laws added after April 24, 1973, that violate Articles 14, 19, and 21 and their underlying principles remain open to legal challenge. The court ruled that any constitutional amendment found violating fundamental rights and the basic structure could be struck down, extending the reach of judicial review. This strengthened the judiciary’s role as the ultimate guardian of the Constitution.

Kesavananda Bharati v. State of Kerala

Facts: The case emerged in the context of a series of constitutional amendments passed by the Indian Parliament in the early 1970s, particularly the 24th, 25th, and 29th Amendments. These amendments aimed to address judicial pronouncements that had obstructed the government’s socio-economic reforms, especially regarding land reforms and the acquisition of private property.Kesavananda Bharati, the head of the Edneer Mutt, a Hindu religious institution in Kerala, challenged the Kerala Land Reforms Act of 1963, as amended in 1969 and 1971. He argued that it infringed upon his fundamental rights, particularly the right to property (as stipulated in Articles 19(1)(f) and 31, which were fundamental rights at the time) and the right to manage religious affairs (protected under Articles 25 and 26).While the case was pending, the 24th Amendment was enacted, affirming Parliament’s authority to amend any part of the Constitution, including fundamental rights, and mandating that the President must give assent to these amendment bills. The 25th Amendment further restricted the right to property, introducing a provision stating that no law aimed at implementing the directive principles in Articles 39(b) and (c) would be considered void on the grounds of violating Articles 14, 19, or 31. Meanwhile, the 29th Amendment included certain Kerala land reform acts in the Ninth Schedule of the Constitution, granting them immunity from judicial review. Issue: What is the scope of the amending power of Parliament under Article 368? What is the validity of the 24th, 25th, and 29th Constitutional Amendments? Can Parliament amend fundamental rights? Are there any inherent limitations on the amending power of Parliament? Judgment: The Court upheld the validity of the 24th Amendment, affirming Parliament’s authority to amend any provision of the Constitution, including fundamental rights, thereby overruling the Golaknath case to this extent. However, the Court introduced the landmark basic structure doctrine. It determined that while Parliament’s amending power under Article 368 is extensive, it is not absolute and does not extend to altering or destroying the “basic structure” or “essential features” of the Constitution.Although the Court did not provide an exhaustive list of what constitutes the basic structure, various judges identified several key features, including:– Supremacy of the Constitution– Democratic and republican form of government– Secular character of the Constitution– Separation of powers among the legislature, executive, and judiciary– Federal character of the Constitution– Sovereignty of India – Unity and integrity of the nation– Rule of law– Welfare state– Judicial review– Fundamental rights (some judges included certain fundamental rights as part of the basic structure).The 24th Amendment was deemed constitutionally valid. The first part of the 25th Amendment, which allows for the acquisition of property for public purposes and establishes the amount of compensation, was held to be intra vires (within the powers of the Constitution). However, the second part of the 25th Amendment, which states that no law implementing Article 39(b) or (c) shall be deemed void for violating Articles 14, 19, or 31, was found to be ultra vires (beyond the powers of the Constitution) because it excluded judicial review.The validity of the 29th Amendment, which includes the Kerala land reform acts in the Ninth Schedule, was upheld but made subject to the basic structure doctrine. This means that if any of the included acts violate the basic structure, they could still be challenged. The court upheld Parliament’s power to amend the Constitution but placed a crucial limitation on this power through the basic structure doctrine, thereby safeguarding the fundamental principles and values of the Constitution and reinforcing the role of the judiciary in upholding them.

L. Chandra Kumar v. Union of India

Facts: After Articles 323A and 323B of the Constitution came into effect, the Central Administrative Tribunal was established with five different Benches with effect from November 1, 1985. However, even before the establishment of these benches, several petitions were filed before the Supreme Court challenging the constitutional validity of the articles in question. The petitioners raised various contentions in this regard but the main contention was that the provisions were unconstitutional because they exclude the jurisdiction of the high courts which went against the basic structure of the Constitution. Issue: Whether the exclusion of the jurisdiction of the High Court through Articles 323-A (2) (d) and 323-B (3) (d) was against the doctrine of judicial review that was a basic feature of the Constitution? Whether the Tribunals constituted either under Article 323B or Article 323A of the Indian Constitution, have the competence to test the constitutional validity of a statutory rule or provision? Judgment: The Court held that Tribunals are not substitutes for High Courts but are additional institutions to assist the High Courts in discharging their functions. High Courts’ power of judicial review under Article 226 of the Constitution cannot be taken away by the establishment of Tribunals. Tribunals are subject to judicial review by the High Courts. The Tribunals have jurisdiction over service matters of central government employees but cannot encroach upon the fundamental rights jurisdiction of the High Courts.The court concluded that judicial review is indeed a basic feature of the Indian Constitution. Also, the court relied on the opinion of Dr Ambedkar, who was the Chairman of the Drafting Committee of the Constitution, on Article 32 where he contended that this Article is the Indian Constitution’s very soul.Judicial review of legislative action in exercise of power by subordinate judiciary or Tribunals created under ordinary legislation cannot be to the exclusion of the High Courts and the Supreme Court. However, they can perform supplemental – as opposed to substitution – role in this respect.Tribunals constituted under Articles 323A and 323B have the authority to test vires of subordinate legislation, but they cannot test vires of their parent statutes. All the decisions of tribunals would be under scrutiny before a Division Bench of their respective High Courts under Articles 226/227. An appeal cannot lie directly to the SC under Article 136. This direction would be operative prospectively. Court held that Tribunals cannot and will not be a substitute for the power of judicial review that the Constitution bestows upon the High Courts. Tribunals will remain under the supervision of the High Courts and can in no way be considered as institutions parallel to the High Courts.