The Ninth Schedule and the Property Amendments

Read the differences. Article 31A saves a CLASS of law from TWO articles; article 31B saves NAMED Acts from THE WHOLE of Part III, and it does so RETROSPECTIVELY, "or ever to have become void", which is how it overrides a judgment already given.

Article 31C, from the Twenty-fifth Amendment 1971. No law giving effect to the policy of the State towards securing the principles in article 39(b) or (c) shall be deemed void on the ground of inconsistency with article 14, article 19 or, as it then stood, article 31; and no law containing a DECLARATION that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to it.

What happened to article 31C. In Kesavananda Bharati the second limb, the bar on judicial review of the declaration, was struck down; the first limb survived. The Forty-second Amendment 1976 widened it from article 39(b) and (c) to ALL the Directive Principles, and in Minerva Mills that widening was struck down, so article 31C stands today as it did after 1971, saving a law giving effect to article 39(b) or (c) from articles 14 and 19. The India Code print carries the widened words with the note that they were struck down; say so, because the printed text and the operative law differ here.

The Ninth Schedule

What it is. A list of Acts, added to by constitutional amendment, each entry of which attracts article 31B's protection.

How it grew. Thirteen entries in 1951, all land reform. It has been enlarged by successive amendments to nearly three hundred entries, and the additions long ago ceased to be confined to agrarian law: they have included legislation on reservations, on essential commodities, on the requisitioning of property, on urban land ceilings, on mines and on elections.

Why that growth is the problem. A device created to protect a specific social programme from a specific fundamental right became a general method of putting any statute beyond Part III. Article 31B does not confine itself to land, and nothing in it limits what may be inserted.

And the technique's own logic. Because article 31B says the Acts shall not be deemed void "or ever to have become void", an insertion can reverse a judgment. That is what the First Amendment did to the Patna High Court's decision, and it is what later amendments did repeatedly.

The amendment cases, in order

Sankari Prasad, 1951. The First Amendment was challenged on the ground that an amendment is "law" within article 13(2) and so may not take away a fundamental right. Held: an amendment under article 368 is made in exercise of CONSTITUENT power and is not "law" within article 13, so the Amendment was valid.

Sajjan Singh, 1965. The Seventeenth Amendment, which added more Acts to the Ninth Schedule and widened article 31A's definition of "estate", was upheld on the same reasoning; two judges doubted it.

Golak Nath, 1967. By six to five, the Court reversed itself: an amendment IS "law" within article 13(2), so Parliament cannot take away or abridge a fundamental right. The decision was given PROSPECTIVE effect, so the earlier amendments and the Ninth Schedule as it stood were left standing.

The response. The Twenty-fourth Amendment 1971 amended article 13 and article 368 to declare that nothing in article 13 applies to an amendment; the Twenty-fifth inserted article 31C; and the Twenty-ninth put the Kerala land reform Acts into the Ninth Schedule.

Kesavananda Bharati, 24 April 1973. By seven to six, a Bench of THIRTEEN held that Parliament may amend any part of the Constitution, including Part III, but may NOT damage or destroy its BASIC STRUCTURE. Golak Nath was overruled; the Twenty-fourth Amendment was upheld; the first limb of article 31C was upheld and the second limb, ousting review of the declaration, struck down.

Why the date matters. Because Coelho uses it as the line. Everything in the Ninth Schedule before 24 April 1973 is protected; everything after it is open to the basic-structure test.

Indira Nehru Gandhi, 1975, and Minerva Mills, 1980. The basic structure applied to strike down parts of the Thirty-ninth and Forty-second Amendments, Minerva Mills holding that the balance between Parts III and IV is itself a basic feature and striking down the widened article 31C and the Forty-second Amendment's attempt to make an amendment wholly unreviewable.

Waman Rao

Facts. Waman Rao v. Union of India, (1981) 2 SCC 362, decided 13 November 1980 by a Bench of five under Chandrachud CJ. Maharashtra's agricultural land ceiling legislation was challenged, and with it the validity of the amendments that had placed such Acts in the Ninth Schedule and of articles 31A and 31C.

Held. Article 31A and the FIRST limb of article 31C are valid and do not damage the basic structure. And, on the Ninth Schedule, the Court drew the line: amendments to the Constitution made BEFORE 24 April 1973, by which Acts were inserted into the Ninth Schedule, are VALID and beyond challenge; amendments made ON OR AFTER that date, by which Acts were so inserted, are OPEN to challenge on the ground that they damage the basic structure.

Why the date. Because 24 April 1973 is the date of Kesavananda, before which Parliament and the States had legislated on the understanding that an insertion was conclusive, and after which they were on notice.

Why it matters. It is the first statement of the cut-off that Coelho later confirmed, and it saved the agrarian programme while ending the Schedule's use as an unlimited device.

I.R. Coelho

Facts. I.R. Coelho (Dead) by LRs v. State of Tamil Nadu, (2007) 2 SCC 1, decided 11 January 2007 by a Bench of NINE under Sabharwal CJ. Tamil Nadu legislation had been struck down and was then placed in the Ninth Schedule. The question referred was whether an Act placed in the Ninth Schedule after 24 April 1973 is open to challenge, and on what test.

Held. It is. A law inserted into the Ninth Schedule after 24 April 1973 is open to challenge on the ground that it DAMAGES OR DESTROYS THE BASIC STRUCTURE. The test is not the form of the amendment but its EFFECT ON THE RIGHTS: whether the law abrogates or abrogates in substance the rights in Part III, tested with reference to articles 14, 19 and 21, which the Court called the golden triangle. Judicial review is itself part of the basic structure, so a device that removes review altogether cannot be sustained. A law already upheld on the merits does not become open to challenge again merely because it is in the Schedule, and the Court left the validity of particular entries to be decided case by case.

Why it matters. It is the end of the Ninth Schedule as a way of putting a law beyond the Constitution. After Coelho, insertion buys protection from the ordinary operation of article 13 and NOT from the basic structure, and the effect test means the question is what the law does rather than where it sits.

The qualification to state. Coelho did not strike down any entry. It laid down the test and remitted the individual challenges, so an answer that says the Ninth Schedule has been struck down is wrong.

The property right itself

As enacted. Article 19(1)(f), the right to acquire, hold and dispose of property, with reasonable restrictions under article 19(5); and article 31, requiring authority of law for deprivation and compensation for compulsory acquisition.

The amendments to article 31. The Fourth Amendment 1955 made the ADEQUACY of compensation non-justiciable and widened article 31A; the Seventeenth 1964 widened "estate" further and added the personal cultivation proviso; and the Twenty-fifth 1971 replaced "compensation" with "AMOUNT" and barred any question of adequacy, and inserted article 31C.

The Forty-fourth Amendment 1978, in force 20 June 1979. Article 19(1)(f) and article 31 were OMITTED from Part III, and article 300A was inserted in Part XII: no person shall be deprived of his property save by AUTHORITY OF LAW.

What that changed. Property ceased to be a fundamental right, so a deprivation cannot be challenged under article 32 as a breach of Part III; it remains a CONSTITUTIONAL right, so a deprivation without authority of law is unlawful and is challengeable under article 226. The requirement of compensation disappeared from the text, though acquisition statutes provide for it and the Act of 2013 provides generously.

And what survives of the saving articles after 1979. They still matter, because articles 31A, 31B and 31C save laws from articles 14 and 19 and from the whole of Part III, and articles 14, 19 and 21 remain. A ceiling law is still tested against article 14, and article 31A is still the answer.

A worked example

A State enacts an urban land ceiling law in 1976, it is struck down by the High Court in 1978, and Parliament inserts it into the Ninth Schedule by an amendment in 1980. A landowner challenges the insertion in 2010.

Does article 31B protect it? On its face yes: article 31B says the Act shall not be deemed void OR EVER TO HAVE BECOME VOID notwithstanding any judgment, so the 1978 decision is displaced.

Is the insertion open to challenge? Yes. The amendment was made after 24 April 1973, so on Waman Rao and Coelho it is open to challenge on the ground that it damages the basic structure.

On what test? Coelho: not the form of the amendment but its EFFECT ON THE RIGHTS, tested with reference to articles 14, 19 and 21. The court asks whether the Act abrogates, or in substance abrogates, those rights.

What does the landowner argue? That the Act was struck down for a reason, that the insertion reverses a judicial decision, and that removing all review of a law that takes property is an abrogation of the golden triangle and of judicial review, both of which are basic features.

What does the State argue? That the law gives effect to article 39(b), so article 31C protects it independently of the Schedule; that a ceiling on urban land is precisely the redistributive object the Constitution contemplates; and that Coelho struck down no entry and requires the effect to be shown.

And the outcome to state. That the challenge is competent and must be decided on the effect of the particular Act. An answer that asserts a result is guessing.

What this does NOT mean

It does not mean the Ninth Schedule is void. Coelho struck down no entry and confirmed that pre-1973 insertions are protected.

It does not mean property has no protection. Article 300A requires authority of law, and articles 14 and 21 apply to the manner of a deprivation.

It does not mean article 31C is what the printed text says. The words widening it to all the Directive Principles were struck down in Minerva Mills, and the article operates as it did after 1971.

And it does not mean the amendments were an abuse. The First Amendment saved a social programme that the courts were dismantling, and Waman Rao upheld articles 31A and 31C precisely because of what they were for.

Quick revision

Article 31A, First Amendment 1951: a law acquiring an ESTATE saved from articles 14 and 19; State laws need the President's assent; the proviso protects land under PERSONAL CULTIVATION within the ceiling limit unless compensation is at market value; "estate" defined widely to include ryotwari land, jagirs, inams, muafis and janmam. Article 31B: named Acts in the NINTH SCHEDULE not void OR EVER TO HAVE BECOME VOID for inconsistency with ANY provision of Part III, notwithstanding any judgment. Article 31C, 25th Amendment 1971: a law giving effect to article 39(b) or (c) saved from articles 14 and 19; its second limb, ousting review of the declaration, struck down in Kesavananda; widened to all Directive Principles by the 42nd Amendment and that widening struck down in Minerva Mills.

The Schedule: thirteen entries in 1951, all land reform; now nearly three hundred, and long since not confined to land. Amendment cases: Sankari Prasad 1951 and Sajjan Singh 1965, an amendment is constituent power and not "law" under article 13; Golak Nath 1967, six to five, it IS law, prospective only; the 24th, 25th and 29th Amendments in reply; KESAVANANDA BHARATI, 24 APRIL 1973, thirteen judges, seven to six, any part may be amended but not so as to damage the BASIC STRUCTURE; Indira Nehru Gandhi 1975 and Minerva Mills 1980.

Waman Rao, 13 November 1980: articles 31A and the first limb of 31C valid; insertions into the Ninth Schedule BEFORE 24 April 1973 valid, insertions ON OR AFTER that date open to a basic-structure challenge. I.R. Coelho, 11 January 2007, NINE judges: a post-1973 insertion is open to challenge; the test is the EFFECT on the rights, with reference to articles 14, 19 and 21, the golden triangle; judicial review is itself a basic feature; no entry struck down and individual challenges left to be decided.

Property: article 19(1)(f) and article 31 as enacted; the 4th, 17th and 25th Amendments on compensation, "estate" and "amount"; the FORTY-FOURTH AMENDMENT, in force 20 JUNE 1979, omitted both and inserted article 300A, no deprivation save by AUTHORITY OF LAW, a constitutional and not a fundamental right.

Test yourself

1. Distinguish articles 31A, 31B and 31C. Article 31A saves a CLASS of law, one providing for the acquisition of an estate and the other listed matters, from TWO articles, 14 and 19. Article 31B saves NAMED Acts listed in the Ninth Schedule from THE WHOLE of Part III, and does so retrospectively, so that they are not void "or ever to have become void" notwithstanding any judgment. Article 31C saves a law giving effect to article 39(b) or (c) from articles 14 and 19.

2. Why is 24 April 1973 the critical date? Because it is the date of Kesavananda Bharati. Waman Rao and I.R. Coelho hold that insertions into the Ninth Schedule made before that date are valid and beyond challenge, and that insertions made on or after it are open to challenge on the ground that they damage the basic structure, since after that date Parliament and the States were on notice of the doctrine.

3. State the test in I.R. Coelho. Not the form of the amendment but its EFFECT on the rights: whether the law abrogates, or in substance abrogates, the rights conferred by Part III, tested with reference to articles 14, 19 and 21. Judicial review is itself part of the basic structure, so a device that removes review altogether cannot be sustained.

4. What did the Forty-fourth Amendment do to the right to property? It omitted article 19(1)(f) and article 31 from Part III with effect from 20 June 1979 and inserted article 300A in Part XII, providing that no person shall be deprived of his property save by authority of law. Property ceased to be a fundamental right and became a constitutional right, so a deprivation without authority of law is challengeable under article 226 but not as a breach of Part III under article 32.

5. What is the objection to the Ninth Schedule as a device? That it began with thirteen land reform Acts in 1951 and now holds nearly three hundred entries, many with nothing to do with agrarian reform, so that a mechanism created to protect a particular social programme from a particular fundamental right became a general method of putting any statute beyond the whole of Part III, and, because article 31B operates retrospectively, of reversing a judgment already given.