Criticism of the Ninth Schedule of the Indian Constitution — after the Supreme Court judgment empowering itself the right to review any Act placed under this Schedule — suggests the critics are either ignorant about this Schedule or have no regard for our Constitution. The provision of the Ninth Schedule was made through the first Amendment of the Constitution and those who effected the first Amendment were the makers of the Constitution.
At that time in 1951, Lok Sabha and Rajya Sabha had not come into existence and the Constituent Assembly was itself working as the Parliament. This Amendment was made after India had experienced three to four years of being an independent country. By that time our Constitution makers had realised that the Judiciary and judicial processes were being misused by vested interests to sabotage laws enacted by the Legislature.
The Schedule was created only to safeguard some Acts against such misuse. The objective was to place certain Acts beyond judicial review. This also meant that action taken under these Acts would not be subjected to litigation.
But the January 11 judgment of the Supreme Court has placed the safeguarded legislations within the ambit of judicial review. With this judgment the Apex Court has struck down a Constitutional provision made by the makers of our Constitution. This is a policy issue and the Supreme Court is not empowered to decide on it. The responsibility to run the government lies with the Executive. The Judiciary has no business running the government.
The powers to make laws and amend the Constitution are vested in Parliament. It is amazing that the Court has almost killed an Amendment effected 56 years ago, that too by our Constitution makers. This was done because the Tamil Nadu Reservation Act of 1993 is there in that Schedule. No democratic person can support this attempt to undermine a Constitutional provision aimed at realising the democratic objectives of our country.
A number of Acts placed under the Schedule relate to land and land reforms. There are 284 Acts in this Schedule. One such Act relates to reservation and one to insurance. About a dozen acts relate to industries, trade and commerce. There is also one vehicle Act. Barring these exceptions, all the other Acts are related to land and land reforms. Post-Independence, land reforms were initiated but the landlords resorted to litigation and misused the judicial process to block land reforms.
This is a tale of the time when India had just attained independence. But has the situation changed since then? Our constitution makers created the Ninth Schedule in the belief that courts were not meant for India’s poor. They were convinced that courts were meant for the rich, who could misuse the process of litigation to deny the poor their lawful rights. How can we imagine a poor person being able to afford the cost of litigation when he is not sure of his next meal? The scene has not changed since. The cruel fact is that the situation has worsened in the last 56 years.
Nithari is a glaring example of it. Dozens of kids went missing. Their parents did not get proper treatment at the police station. Their cases were not pursued seriously. Some could not even register their complaints.
Not even a single, and I emphasise, not a single parent of those kids moved the courts to make the police look for their missing children. Only the father of a grown-up girl Payal, who was from a middle class family, could move court. Nithari’s poor approached the National Commission for Women. They even knocked at the Prime Minister’s door. They met local MPs and some of them talked to the Chief Minister of Uttar Pradesh. They met reporters and they reached the offices of newspapers, but not one of them ever thought of rushing to the courts. The reason: they know the courts are not meant for them.
Now what should the government do if the courts are not meant for the poor and the affluent strata of society denies the poor their rights to use a costly and time-consuming judicial process? No government in a democratic country can be a mute spectator to this judicial assault against the poor by the rich.
Under the Ninth Schedule of the Constitution the poor had the constitutional protection against the misuse of Judiciary and the judicial process. Choudhry Charan Singh emerged a national leader only by implementing land reforms protected under the Schedule. The Left Front could also not have enforced land reforms in West Bengal without the Constitutional safeguard against litigation. Our government in Bihar was trying to emulate the Left. But this judgment has made it impossible for Bihar to emulate West Bengal.
I do not claim to be a legal or Constitutional expert. But with experience, I can say that only the people can guarantee the protection of Constitution and its basic structure. Land reforms protected under the Schedule weakened the feudal elements who no longer decide the voting patterns in villages and muffosil areas. The Schedule had strengthened democracy at the grass roots. Popular will reflected through the ballot is the ultimate guarantee of the protection of Constitution.
I would like to ask a question to those who believe that only the Judiciary can save the Constitution. What was the Judiciary doing when in 1975 the Indian Constitution was strangulated? Lakhs of people were jailed under MISA. I would like to know how many of the so-called experts, who are now praising the Supreme Court for its attempt to kill the Schedule, went to jail when Indira Gandhi rendered the Constitution meaningless?
I myself was in jail and I know that nobody got any legal or judicial relief from any quarter. Judiciary did not restore the Constitution. It was the will of the voting Indian citizens that prevailed ultimately. Indira Gandhi did not go for elections on the order of any court. She did so under democratic pressure.
I call upon all democratic forces to rise against the judicial onslaught against Constitution in the name of protecting its basic structure.
The author is president of Janata Dal (United)