What is the Ninth Schedule of the Constitution ?

The First Constitutional Amendment Act of 1951 inserted the Ninth Schedule into the Constitution through Article 31B. Article 31B declared any law listed in the Ninth Schedule valid even where it violated fundamental rights, and it barred courts from reviewing those laws at all. Constitutional challenges to several states’ land reform and property laws had prompted Parliament to pass the Amendment, and Parliament placed 13 laws into the Schedule at the outset.

Central and state governments went on to fill the Ninth Schedule over the following decades with laws covering land redistribution, the nationalisation of private industry, tenancy, and rent and price controls. Governments have also used the Schedule to protect election laws and reservation policies. With the fundamental right to property gone, the Schedule has become a bottomless pit, insulating laws from judicial scrutiny regardless of their quality or legality. It now holds 284 laws, including roughly 150 amendment acts.

The Kesavananda Bharati case of 1973, which laid down the Basic Structure Doctrine, never discussed Article 31B, the source of the Ninth Schedule, and the right to property played no part in that doctrine’s development at all. In Waman Rao v Union of India (1981), the Supreme Court upheld the validity of both the First Amendment and the Ninth Schedule it created. The Court chose not to allow any challenge to laws inserted before 24 April 1973, the date of the Kesavananda decision, because it did not want to unsettle claims and titles that had already formed on the understanding that Ninth Schedule laws could not be challenged under Articles 14, 19, and 31.

In I.R. Coelho v State of Tamil Nadu (2007), the Supreme Court ruled that Ninth Schedule laws inserted after 1973 remained subject to the Basic Structure Doctrine. The Court then equivocated in Glanrock Estate (P) Ltd. v The State of Tamil Nadu (2010), hesitating to apply Coelho’s own principles to another post-1973 law placed in the Schedule. The Court held instead that a law in the Schedule would fall only if it breached certain overarching principles, such as secularism, democracy, separation of powers, judicial review, the rule of law, or egalitarian equality.

These rulings on the Ninth Schedule and fundamental rights carry little relevance to property today, since property no longer counts as a fundamental right at all. Parliament had felt the need to shield “progressive” land reform legislation from judicial scrutiny only because the right to property could once be asserted as a fundamental right. The rent, black market, and price control laws added to the Schedule during India’s socialist planned-economy years carry little relevance to today’s economy either.

Laws kept entering the Schedule even after Kesavananda made clear that the right to property was not even a basic feature of the Constitution, though the pace of new insertions has slowed over the last three decades. The Supreme Court, despite several opportunities, has never struck the Ninth Schedule from the Constitution, and no government since has attempted to review whether the Schedule still serves any purpose.