said that a 9-judge panel will examine extra-constitutional legislation through legislation under the Ninth Schedule of the Constitution which makes these laws beyond judicial scrutiny and convenient politically motivated policies. Faced with increasing political belligerence challenging the rule of law, the SC is concerned that political parties engaged in creating and sustaining vote banks are using the Ninth Schedule as means to push legislation that could affect the fundamental tenets of the Constitution.
The decision to refer this matter to the 9-judge Constitutional Panel came up
while hearing a case where the
Kerala Government decided to pass legislation under the Ninth Schedule to take over old growth teak forest land owned by Nilambur Kovilakam after courts struck down the government’s decision. The
West Bengal (WB) Government also introduced West Bengal Land Holding Revenue Act, 1979 under the Ninth Schedule after the law was found extra-constitutional. Other instances have been the
Tamil Nadu (TN) law on reservation guaranteeing 69% reservation based on birth-based caste, the Kerala Self Financing Professional Colleges (Prohibition of Capitation Fees and Procedure for Admission and Fixation of Fees) Act of 2004 that sought to aggrandize 50% of seats in unaided educational institutions, etc.
The issue of legislation under the Ninth Schedule is not a new issue and has a very interesting history. After independence, the SC had ruled that legislation under the Ninth Schedule was beyond judicial scrutiny even it take away the fundamental rights of a citizen. However, in 1973, a 11 member panel voted 6:5 to overturn earlier ruling saying that a legislation cannot be introduced under the Ninth Schedule if it violates the Constitution; the panel said all decisions made prior to 1973 will hold. However, the SC now says that the 1973 ruling has inconsistencies that need to be addressed by a larger bench.
