Political Responses to Striking Down of Legislation in India

It is useful to begin with the default position—when the Supreme Court and high courts strike down legislation, political compliance with the

¹ Throughout this chapter, 'political responses' will refer to responses by the relevant legislatures and governments—not responses across the spectrum of political parties.

Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom.

Chintan Chandrachud.

© Oxford University Press 2017. Published 2017 by Oxford University Press. courts' judgments is often automatic. However, even when the Indian Parliament wishes to reject such judgments, it is difficult for it to do so through ordinary legislation, as striking down of legislation is based on constitutional grounds and has immediate effect. However, as with legislatures from other parts of the world, it has sought to reject such judgments indirectly, by amending the provisions of the Constitution itself—thereby dismantling the foundation of the court's judgments.

Parliament has relied on two mechanisms to respond to strike- downs—fundamental rights amendments and Ninth Schedule amend­ments. Both these response mechanisms were actually conceptualized by the Constituent Assembly of India, but while acting in different capacities. The power to amend the Constitution (including the chapter on fundamental rights) formed part of the original constitutional text enacted in 1949, and was a product of the debates of the Constituent Assembly. Ninth Schedule amendments are a special species of con­stitutional amendments that were developed by the Constituent Assembly, in its capacity as Provisional Parliament of India,^[207] shortly after the Constitution entered into force. The invocation of these response mechanisms make it clear that strike-downs have not neces­sarily constituted a 'final word' on the validity of primary legislation violating fundamental rights,^[208] but have instead left room for political response.

Fundamental Rights Amendments

This amendment is an attempt to undo the justice that the courts of law have given. When the highest tribunal in our land has declared that it is immoral and unconstitutional, now we are trying to change the rules of the game. We have lost the game; so now we go and cheat. We change the rules so that what was unlawful and unconstitutional now becomes constitutional.^{[209] [210]}

The general power to amend the Constitution is set out in Art. 368.5 The relevant portion of this provision reads as follows:

(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,^[211]

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

Article 368 thus provides for a 'dual majority⁷⁷ procedure for consti­tutional amendments. An amendment needs to be passed by a simple majority of the total membership in the Lok Sabha and Rajya Sabha. It also needs to be passed by a majority of not less than two-thirds of the members of each House, present and voting. No explicit limita­tion on Parliament's amending power was originally included in the Constitution.^{[212] [213] As the terms of Art. 368 bear out, the amendment of some constitutional provisions concerning federal matters requires ratification by the legislatures of at least half the states in India. All existing fundamental rights, however, can be amended without the ratification of state legislatures.}

In nearly seven decades since it entered into force, the Constitution has been amended on numerous occasions. One hundred constitutional amendments were passed up to May 2015, while several others were on the anvil. Some of these involved minor changes to the Constitution^[214] while others, such as the Constitution (Forty-second Amendment) Act, 1976, sought to radically transform parts of the Constitution.^[215] While certain portions of the Constitution have remained unamended,^[216] oth­ers, including the chapter on fundamental rights, have been amended quite frequently. Although some people argue that these amendments have been motivated by 'narrow political ends' and to pander to 'vote­bank politics',^[217] it is unfair to paint all constitutional amendments with the same motivational brush.^[218]

Some of these constitutional amendments share a common fea­ture: they have been enacted with the objective of indirectly nullifying Supreme Court and high court decisions striking down legislation. In other words, the substratum of judgments invalidating legislation held to breach fundamental rights has been removed through amendment of the higher law from which they derived their authority.

In order to analyse the manner in which fundamental rights amend­ments can be employed as a political response mechanism, it is useful briefly to introduce the 'doctrine of eclipse' in Indian constitutional law. This is a judicially crafted doctrine that postulates that when a statute or parts of it are struck down for violating a fundamental right, it is not treated as having been wiped off the statute book altogether.^[220] A shadow descends over the statute or its invalid provisions, which is lifted when the constitutional bar ceases to operate. It also continues to remain in force with respect to persons who do not enjoy the funda­mental right in question.^[221]

The statute thus remains in a 'state of suspension'¹⁷ or, as Prime Minister Nehru described it, 'half-dead',¹⁸ and can be brought back into operation when the constitutional provision based on which the legislation was struck down is itself amended.¹⁹ The constitutional barrier having been removed, the eclipse over the legislation would stand lifted.²⁰ To take an example, in Bhikaji v. State of Madhya Pradesh,²¹ the Supreme Court held that the eclipse cast over a 1947 statute,²² which contravened fundamental rights, lifted when the relevant fundamental rights were later amended to remove the conflict. Thus, the statute was once again enforceable.

That the doctrine of eclipse can operate to resuscitate pre-constitu­tional legislation²³ is a matter of judicial consensus.²⁴ What remains contested is whether the doctrine applies to post-constitutional legis- lation.²⁵ In some cases, the Supreme Court²⁶ and high courts²⁷ have

¹⁷ Mehra (n. 15), para 29 (dissenting opinion of Deshpande J.).

¹⁸ Lok Sabha Debates, vol. XII, no. II, col. 9080 (Jawaharlal Nehru).

¹⁹ Field describes amending the Constitution as a 'difficult but perfectly fea­sible method of removing constitutional obstacles from the path of statutes or of enlarging legislative powers'. See Oliver Field, The Effect of an Unconstitutional Statute (University of Minnesota Press 1935), p. 288.

²⁰ Crawford (n. 15).

²¹ AIR 1955 SC 781.

²² CP & Berar Motor Vehicles (Amendment) Act, 1947.

²³ This refers to all laws in force immediately before the commencement of the Constitution (that is, before 26 January 1950).

²⁴ Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128; Bhikaji Dhakras v. State of Madhya Pradesh, AIR 1955 SC 781; Behram Pesikaka v. State of Bombay, AIR 1955 SC 123.

²⁵ This refers to all laws that come into force after the commencement of the Constitution (that is, after 26 January 1950). This is both peculiar and counter­intuitive, as it effectively places colonial legislation on a higher plane compared to legislation passed after the Indian Constitution was enacted.

²⁶ Sundararamier v. State of Andhra Pradesh, AIR 1958 SC 468; Shri Ambica Mills (n. 16); K.K. Poonacha v. State of Karnataka, (2010) 9 SCC 671. In the last-mentioned case, however, the Court observed that the doctrine of eclipse operates vis-a-vis post-constitutional laws that fail to comply with procedural requirements laid down in Part III of the Constitution, not post-constitutional laws that take away substantive rights provided for in Part III.

²⁷ The dissenting opinion of Deshpande J. in Mehra (n. 15) is the most elaborate defence of the doctrine of eclipse from the Bench. See also M inoo held that the doctrine would apply equally to post-constitutional laws, saving Parliament from the costs of re-enactment of a statute which is struck down. Other decisions by the Supreme Court^{[222] [223]} and high court^[224] suggest that the doctrine only applies to laws that came into being before the Constitution, and that post-constitutional legislation that contravenes fundamental rights is 'stillborn' and would be considered a nullity.^[225] Academic opinion on the issue is also deeply divided.^[226]

The operation of the doctrine of eclipse vis-a-vis post-constitutional laws violating the fundamental rights has some important practical implications.

It is not difficult to imagine situations where consensus prevails over broad constitutional principles, but not over the manner in which those principles should be given effect—the devil is often in the detail. However, the specific terms in which a constitutional amendment is enacted may obviate the need to invoke the doctrine of eclipse. Hence, where a constitutional amendment contains a specific savings clause reviving legislation that has been previously declared invalid by the courts,^[227] it performs the same task as the doctrine of eclipse would in the circumstances.

Precisely how can the power to amend fundamental rights under the Constitution be employed by Parliament as a response mechanism to overcome judicial decisions striking down primary legislation? The possibilities depend crucially upon two factors: whether the doctrine of eclipse is applicable in the circumstances (alternatively, whether the amendment contains a specific savings clause of the kind just described) and whether the constitutional amendment applies pro­spectively or retrospectively. A hypothetical example (as follows) brings out the alternatives.

The Indian Constitution entered into force in 1950. In 1965, a stat­ute, 'UnconStat', is enacted by Parliament. In 1966, the Supreme Court strikes down UnconStat on the basis that it violates a fundamental right. Parliament would have the following options before it in, say, 1970. If the doctrine of eclipse applies in the circumstances or if the amendment contains a specific savings clause, a retrospective constitu­tional amendment would resuscitate UnconStat, which would once again become operative without needing fresh enactment.^[228] In this sce­nario, a prospective constitutional amendment would not lift UnconStat out of the shadow of invalidity, since the amendment would apply to statutes enacted after 1970.

If the doctrine of eclipse does not apply and if the amendment does not contain a specific savings clause, even a retrospective constitutional amendment would not resuscitate UnconStat, since it cannot be revived from its state of unconstitutionality. However, in this case, if a law iden­tical to UnconStat is passed after 1965 (say, in 1968) and remains to be struck down as unconstitutional until 1970 (after the constitutional amendment is passed), the law would be protected by the amendment. Finally, if the doctrine of eclipse applies or if the amendment contains a specific savings clause and the constitutional amendment is prospective, the cause of unconstitutionality is treated as having been removed only in 19 70.³4 Thus, the 1968 statute which is still to be struck down will, for all times to come, remain unprotected by the amendment. Only fresh statutes enacted after 1970 would be protected by it. All these possibilities are set out in Table 2.1 below.

Table 2.1 Effect of Doctrine of Eclipse or Specific Savings Clause on the Validity of Legislation Struck Down

Of course, in all cases where UnconStat is not resuscitated auto­matically by the constitutional amendment, it can be re-enacted by Parliament in the same terms with the expectation that, the Constitution having been amended, it cannot be struck down based on the same

³⁴ Durga Das Basu, Commentary on the Constitution of India (8th edn, LexisNexis Butterworths Wadhwa 2007), p. 939. infirmity. What the doctrine of eclipse (or a specific savings clause) does is to render constitutional amendments more potent as response mechanisms than they would have been in its absence, since retrospec­tive constitutional amendments coupled with the doctrine of eclipse or a specific savings clause automatically validate legislation that is struck down as unconstitutional.

To establish the broader argument in this chapter, few judgments of the Supreme Court and high courts, nullified through constitutional amendments (set out in Appendix A), have been selected on the basis of two characteristics. First, only cases that involved a challenge to primary legislation have been considered, since the book compares responses to judicial review of primary legislation in India and the UK. Delegated legislation, emanating from the executive rather than the legislature, is an entirely different animal,^[229] and British courts also have the power to strike down delegated legislation that contravenes rights under the Convention. Second, only those cases where legisla­tion was struck down for violating fundamental rights under Part III have been selected, although this need not have been the court's only reason for doing so. This naturally means that no judgments striking down primary legislation for breaching constitutional rights outside of Part III have been considered. The underlying rationale for this is to ensure a comparison between equals, since judicial review of primary legislation for breaching Convention rights in the UK cannot be mean­ingfully compared with judicial review in India based, for instance, on the federal distribution of powers or the freedom of interstate trade.

The judgments selected are worth examining in order to expound upon the manner in which fundamental rights amendments have been employed as a response mechanism by Parliament. Particularly in the early years of constitutional experience, a frequent governmental response to judicial decisions whose reasoning on rights Parliament or government disagreed with was to veer towards a change in the Constitution.^[230] As one member of parliament (MP) put it while debating one of these constitutional amendments, albeit somewhat histrionically: 'I [personifying Parliament] bow my head to the Supreme Court or any other court to interpret the law [the Constitution]. If the law does not express what I want, what I wish, then I am at full liberty to amend it any number of times. It may even be 50 times.'^[231] In some cases, MPs urged litigants not to approach the courts seeking the invali­dation of a specific piece of legislation, on the ground that if necessary, Parliament would be ready to amend the Constitution to nullify the basis of the judgment.^[232]

Let us consider some examples: in Shaila Bala Devi v. Chief Secretary,^[233] the petitioner sought a judgment from the Patna High Court that sec­tion 4(1)(a) of the Indian Press (Emergency Powers) Act, 1931, that penalized the publication of any document which incited or encour­aged the commission of murder or any cognizable offences involving violence, breached the right to freedom of speech and expression under Art. 19(1)(a) of the Constitution. The majority on the Bench struck down the provision on the basis that it violated the right to freedom of speech and expression and did not fall under the permissible excep­tions under Art. 19(2). At the time, the only exception was law relating to libel, slander, defamation, contempt of court, or 'any matter which offends against decency or morality or which undermines the security of, or tends to overthrow the State'. Similarly, in Romesh Thapar v. State of Madras,^[234] the Supreme Court found section 9(1A) of the Madras Maintenance of Public Order Act, 1949 (which authorized a ban on the circulation of documents to secure 'public safety' and 'public order') overbroad as it violated Art. 19(1)(a) without falling within the scope of the exceptions laid down in Art. 19(2).

Parliament was quick to respond. By the first amendment to the Constitution,^[235] the exceptions provided for in Art. 19(2) were expanded to encompass clearly cases such as Shaila Bala and Romesh Thapar.^[236] The amendment was retrospective in operation and con­tained a specific savings clause protecting legislation that was declared void under the original unamended version of Art. 19.^[237] Parliament thus effectively nullified the two judgments and revived the statutes by altering the constitutionally permissible restrictions on the right to freedom of expression. In fact, when Shaila Bala went in appeal to the Supreme Court after the amendment was enacted, the Patna High Court's judgment was reversed on the basis that the constitu­tional amendment had decisively concluded the matter.^[238] Parliament was thus able to replace courts' conception of the right to freedom of expression with its own.

In State of West Bengal v. Bella Banerjee,^[239] the constitutionality of a provision of the West Bengal Land Development and Planning Act, 1948 was at issue before the Supreme Court. The statute was enacted primarily for the settlement of immigrants who had migrated into the province of West Bengal and provided for the acquisition and devel­opment of land. Those whose land was acquired under the statute contended that section 8, which restricted the amount of compensa­tion payable on acquisition so as not to exceed the market value of the land on a fixed date, violated the right to compensation under the (erstwhile)^[240] fundamental right to property laid down in Art. 31(2) of the Constitution. The Court accepted the argument and struck down the relevant section for failing to comply with the 'letter and spirit' of the article.^[241] Parliament promptly altered the Supreme Court's reason­ing of rights through a constitutional amendment which excluded the inquiry into the adequacy of compensation paid for acquisition of land from judicial consideration.^[242] The judgment of the Supreme Court was therefore neutralized by amending the constitutional provision upon which it rested.

Along similar lines, the Constitution (Seventeenth Amendment) Act, 1964 was enacted by Parliament to nullify two judgments. In the first,^{[243] [244] the Supreme Court struck down the Kerala Agrarian Relations Act, 1961 in relation to its application to certain kinds of land, as it vio­lated the right to equality under Art. 14. The Court rejected the govern­ment's argument that the statute fell within the protective umbrella of Art. 31A, which protected laws providing for the acquisition of estates from scrutiny under Arts 14,50 19,[245] and 31[246] of the Constitution. In the second case,[247] the same statute was found by the Kerala High Court to violate Arts 14, 19, and 31 of the Constitution. The constitutional amendment passed by Parliament expanded the scope of Art. 31A to include within its protective cloak the kind of legislation that was at issue in the two cases. The Supreme Court upheld the validity of the constitutional amendment in two subsequent decisions.[248] Since the amendment did not contain a specific savings clause (and the doctrine of eclipse was not invoked), the state legislature enacted fresh legisla­tion[249] with similar objectives in place of the invalidated statute.}

R.C. Cooper v. Union of India,^[250] better known as the Bank Nationalization case, provides yet another example of parliamentary rejection of a judgment striking down legislation. The petitioner, a shareholder and director of a bank, challenged primary legislation^[251] that sought to nationalize 14 Indian banks. An 11-judge bench of the Supreme Court struck down the statute on the basis that it breached the right to equality under Art. 14, the right to freedom of trade under Art. 19(1)(g), and the rights to property protected by Arts 19(1)(f) and 31(2). Looked upon by many within government as a judgment that impeded the building of a socialist economy⁷,^[252] Parliament passed a constitutional amendment^[253] to roll back the effects of the decision. Subsequently, the Supreme Court upheld the amendment (barring one portion of it).^[254] Once again, since the amendment did not contain a specific savings clause, Parliament enacted another statute^[255] with the same objectives, which, in the light of the constitutional amendment, was not open to constitutional challenge on the same basis.

What is interesting to note from these cases is that for the large part, courts upheld fundamental rights amendments passed by successive Parliaments.^[256] In the words of Patanjali Sastri J.: '[T]o make a law which contravenes the constitution constitutionally valid is a matter... [which courts considered to be] within the exclusive power of Parliament.'^[257] This statement provides a useful lead into questions concerning the scope of the amending power.

Frequent constitutional amendments over the years gave rise to one of the most politically loaded questions of Indian constitutional law. Are there any limitations on the amending power of Parliament? Art. 13(2) of the Constitution proscribes the state from making 'any law which takes away or abridges the rights conferred' by Part III of the Constitution.^[258] A difficult issue that arose in litigation was whether the term 'law' in Art. 13 included constitutional amendments. If it did, then that would mean that Parliament lacked the constitutional authority to amend fundamental rights, as it had been doing soon after the Constitution was enacted.

When the Supreme Court was first confronted with this question, a unanimous five-judge bench^[259] decided that 'law' did not include constitutional amendments, paving the way for Parliament to amend any part of the Constitution, including Part III.^[260] Thirteen years later, the majority on a five-judge bench of the Supreme Court agreed.^[261] However, two judges expressed scepticism about the correctness of this conclusion. Hidayatullah J. said that 'stronger reasons' were required in order to arrive at this decision.^[262] Mudholkar J., on the other hand, articulated that the Constituent Assembly might have intended to give permanency to the 'basic features of the Constitution'.^[263] But he chose not to develop what the 'basic features' of the Constitution were in any detail.

A few years later, the question was referred to a bench of 11 judges of the Supreme Court in Golak Nath.^[264] Aggrieved by the impact of land reform legislation, several litigants filed writ petitions in the Supreme Court.^[265] They claimed that such legislation, along with certain consti­tutional amendments that protected the legislation, should be struck down for breaching their fundamental rights. On this occasion, by a thin majority of 6:5, the Supreme Court held that constitutional amendments were 'law' within the purview of Art. 13(2), rendering Part III of the Constitution inviolate.^[266] However, the majority applied the doctrine of 'prospective overruling' to avoid the chaos and confusion that they expected would follow the invalidation of existing constitu­tional amendments and the statutes on which they were based.^[267]

In 1973, Golak Nath was reconsidered by an unprecedented 13-judge bench of the Supreme Court in the Basic Structure case.^[268] This case arose out of six writ petitions challenging land redistribution legisla­tion and the constitutional amendments that protected it. The reported name of the case, Kesavananda Bharati v. State of Kerala, comes from the title of one of the petitioners, His Holiness Swami Kesavananda Bharati, the head of a religious establishment. Eleven separate opinions were delivered in what was one of the longest appellate decisions,^[269] comprising over 400,000 words, of the last century.

What complicates the judgments in the Basic Structure case is the discord between what the judges said and what they were understood to mean by subsequent benches, which relied on a questionable 'sum­mary⁷ of the majority's decision signed by 9 of the 13 judges.^[270] It is difficult to find common ground between the seven judges that form the 'majority in the case;^[271] however, subsequent judgments of the Supreme Court consider the ratio decidendi of the Basic Structure case to be that although the term 'law' in Art. 13(2) does not include con­stitutional amendments and that Parliament could amend any part of the Constitution (including Part III), the power of amendment under Art. 368 of the Constitution does not include the power to alter, abro­gate, or destroy the basic structure of the Constitution.^[272]

Thus, the 'basic structure' doctrine (also referred to as the 'basic features' doctrine and the 'essential features' doctrine) postulates that although Parliament may amend any part of the Constitution, a consti­tutional amendment that destroys, alters, or abrogates its basic structure can be struck down as an 'unconstitutional constitutional amendment'. What comprised the basic structure of the Constitution was left open, allowing judges to develop the concept incrementally. The following are amongst the principles that have been included within the purview of the basic structure doctrine, in the Basic Structure case and subsequent decisions: the supremacy of the Constitution,^[273] secularism,^[274] the sov­ereignty of India,^[275] federalism,^[276] judicial review,^[277] the limited power to amend the Constitution,^[278] and free and fair elections.^[279] For the purposes of this chapter, the key difference between Golak Nath and the Basic Structure case is that where the former embodied a rigid restric­tion on the amendability of Part III, the latter incorporated functional flexibility, allowing Parliament to amend any part of the Constitution subject to the 'basic structure' qualification.^[280]

Thus, the Indian Parliament's formally unlimited power to amend the Constitution has been attenuated by the Basic Structure case and subsequent decisions. The existing position of law on Parliament's ability to nullify judgments that strike down legislation for violating of fundamental rights through constitutional amendments is as fol­lows. Not all fundamental rights form part of the basic structure of the Constitution—if they did, the relative flexibility in the Basic Structure case, in comparison with G olak Nath, would have been meaning- less.^[281] However, Parliament cannot amend a fundamental right to the extent that the basic structure of the Constitution would be abrogated.

However, it is still open to Parliament to nullify a judgment striking down legislation by amending a fundamental right without altering the basic structure of the Constitution. The possibility of Parliament responding to strike-downs in this way through fundamental rights amendments, without having an impact on the basic structure of the Constitution, is discussed later in greater detail.

Ninth Schedule Amendments

[T]he Indian is the only constitution... providing for protection against itself.^[282]

The Ninth Schedule resembles an appendix to the Constitution and is associated with a special species of constitutional amendments. It is linked to Art. 31B, which reads as follows:

Validation of certain Acts and Regulations: Without prejudice to the gen­erality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part [Part III of the Constitution], and notwithstanding any judg­ment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.

Although it is tempting to draw associations between the Ninth Schedule and the Canadian 'notwithstanding clause',^[283] there are some crucial differences between the two. Unlike in Canada (where the notwithstanding clause can be invoked by ordinary legislative majorities), the Ninth Schedule is treated as a part of the Constitution and statutes can only be added to it through the supermajority procedure prescribed for constitutional amendments in Art. 368. This is important, because if the Ninth Schedule could be invoked through the ordinary legislative process, then the Indian system could not have been formally classified as one characterized by judicial supremacy.

Although federal or state legislation may be placed in the Ninth Schedule, only the Union Parliament, which is entrusted with the power of amending the Constitution, can do so.^[284] There is no limit on the number of statutes that can be added to the Ninth Schedule through a single constitutional amendment.^[285] In fact, in only one case has a constitutional amendment inserted just a single statute into the Ninth Schedule.^[286] Finally, being more difficult to invoke, the Ninth Schedule is also in a sense more potent than the notwithstanding clause: there is no time limit specified for the insulation of statutes inserted into the Ninth Schedule from judicial review.^[287] Statutes in the Ninth Schedule, in other words, were meant to remain protected in perpetuity.

Since Art. 31B itself contains a specific savings clause protecting legislation notwithstanding any judgment, by automatically reviving laws that are struck down and later inserted into the Ninth Schedule without fresh enactment, it performs the same task that the doctrine of eclipse would have in the circumstances. This explains why the doc­trine of eclipse does not need to be invoked in cases where Parliament responds to a judgment by inserting legislation into Ninth Schedule.^[288]

Legislative override through Art. 31B and the Ninth Schedule was not originally part of the Constitution. It was included through a con­stitutional amendment in 1951 in order to immunize agrarian reform legislation from judicial scrutiny for contravening one or more fun­damental rights under Part III.^[289] More than 280 statutes currently lie within the confines of the Ninth Schedule,^[290] some of which have little to do with land reform.^[291] State legislation comprises more than 85 per cent of the statutes in the Ninth Schedule.^[292]

There are three stages at which Parliament may decide to insert legislation into the Ninth Schedule. First, it could choose to insert leg­islation into the Schedule as a precaution against an adverse judicial decision in the future.^[293] Second, it could pre-empt a final decision by a court by inserting legislation into the Schedule in cases where a court has granted interim relief suspending its operation during the pendency of a case.^[294] Third, it could insert legislation that has already been struck down into the Ninth Schedule to lift it from the shadow of unconstitutionality, since the legislation would be treated as never having become void.^[295] This section will focus on the third use of the Ninth Schedule—as a response mechanism that takes the form of an attempt to immunize statutes (or specific statutory provisions) that were finally adjudicated upon and struck down by the Supreme Court and high courts. These uses of the Ninth Schedule will be referred to as 'Ninth Schedule amendments'. At least five^[296] of the 100 constitu­tional amendments enacted up to May 2015 represent Ninth Schedule amendments.^[297]

A few examples shed light on how Parliament has responded to judgments striking down legislation for violating fundamental rights through Ninth Schedule amendments. In Balmadies Plantations v. State of Tamil Nadu,^[298] a group of petitions challenged the constitu­tional validity of legislation^[299] that sought to transfer private forest lands to the state government. The Madras High Court dismissed the petitions.^[300] In appeal, the Supreme Court upheld the validity of the statute except in so far as it related to the transfer of forests in certain private estates to the government, which in its view violated Arts 14,^[301] 19,^[302] and 31^[303] of the Constitution. In a little over two years, Parliament passed a constitutional amendment inserting the statute into the Ninth Schedule.^[304] This ipso facto revived the portion of legislation that was struck down.

In another case, Kerala enacted the Kerala Land Reforms Act, 1963 as the primary land reform law for the state. The statute was inserted into the Ninth Schedule to protect it from constitutional challenge on the touchstone of violating fundamental rights.^[305] In 1969, extensive amendments were made to the law by an amending statute,^[306] which was not itself inserted into the Ninth Schedule. The amended provisions of the Kerala Land Reforms Act were challenged before the Kerala High Court on the basis that they were unconstitutional. The court held that since the amending statute was not inserted into the Ninth Schedule, the provisions of the original legislation, as amended by the subsequent statute, could not receive the protection of Art. 31B.^[307]3 It struck down some statutory provisions for violating the right to equality under Art. 14 and the right to property under Art. 19(1)(f) of the Constitution.^[308]

In appeal, the Supreme Court substantially confirmed the conclusions of the high court.^[309] In a separate group of petitions, the Supreme Court also struck down another discrete aspect of the statute, as amended in 1969.^[310]6 Within two months of the Supreme Court's judgments, Parlia­ment inserted the amending act of 1969 into the Ninth Schedule with the avowed objective of nullifying the effects of this group of decisions.^[311] The statement of objects and reasons accompanying the amendment made it clear that Parliament was consciously revising the judgments:^[312] Although the High Court of Kerala has generally upheld the scheme of land reforms envisaged [in the statute]... a few vital provisions have been struck down.. The Supreme Court. [has also] generally upheld the scheme of land reforms as envisaged in the principal Act as amended but agreed with the High Court invalidating certain crucial provisions. It is feared that this will have far-reaching adverse [e]ffects on the imple­mentation of the programme of land reforms in the State and thousands of tenants will be adversely affected by some of the provisions which have been either struck down or rendered ineffective.

The invalidated legislation was thus automatically revived without requiring re-enactment.

In Paschimbanga v. State of West Bengal,^[313] the Calcutta High Court con­sidered the validity of the West Bengal Land Holding Revenue Act, 1979, a statute that provided for the levy of revenue on landholdings in the state. Section 2(c) was struck down for granting excessive powers to the authority prescribed under the statute.^[314] Since the court considered that this provision was not severable from the rest of the statute, the entire statute was rendered unenforceable. About four years later, Parliament passed a constitutional amendment validating the act by inserting it into the Ninth Schedule.^[315] Yet again, the Ninth Schedule was engaged as a constitutional device to roll back the effects of a judicial decision that had struck down primary legislation for breaching fundamental rights.

Following the judgment in the Basic Structure case, there appeared to be a zone of conflict between the accepted effect of the case and the Ninth Schedule. While Art. 31B, along with the Ninth Schedule, sought to confer unlimited powers of constitutional amendment on Parliament to protect legislation from judicial review, the Basic Structure case was an attempt to limit Parliament's amending power and subject it to judicial scrutiny.^[316] The conflict reflected contrasting political narratives—the first, in which the founding fathers of the nation, many of whom became MPs, believed that they had a special claim to expounding the Constitution's mean­ing—one that was superior to that of the judges,^[317] and the second, in which the judges assumed responsibility for curbing governmental excesses through an unprecedented jurisdiction to review constitutional amendments.

This conflict was ultimately reconciled by the Supreme Court in I.R. Coelho v. State of Tamil Nadu.^[318] A unanimous nine-judge bench held that primary legislation which was inserted into the Ninth Schedule after the decision in the Basic Structure case would be subjected to the 'basic structure' test laid down in that decision. In other words, the insertion of legislation into the Ninth Schedule would be struck down if it altered, abrogated, or destroyed the basic structure of the Constitution. The Court also held that some fundamental rights^[319] per­tained to the basic structure of the Constitution. The insertion of legis­lation into the Ninth Schedule would also be struck down if the statute abrogated these fundamental rights. The test that would be employed to determine whether a fundamental right pertaining to the basic struc­ture was abrogated was the 'rights test', according to which the impact and effect of the constitutional amendment on the fundamental rights would be relevant. Thus, the status and level of protection accorded to statutes inserted into the Ninth Schedule has been circumscribed. However, even after the decision in Coelho, the possibility of Parliament repudiating judicial reasoning of rights by validly inserting legislation that has been struck down for violating fundamental rights into the Ninth Schedule remains open.^[320]

Thus, the important point to be made is that some operational space for legislative response remains available after Coelho, albeit in restricted form. Some scholars disagree with this analysis. Soli Sorabjee, for instance, argues that the decision in Coelho 'in effect' renders fundamental rights under the Indian Constitution unamend- able.^[321] This argument thus questions the status of constitutional amendments to fundamental rights as a political response mecha­nism to judicial review. Randhawa reads C oelho as indicating that the inclusion of a statute that violated fundamental rights in the Ninth Schedule would invariably be invalidated through the basic structure doctrine.^[322] Jaising makes a similar argument, stating that Coelho 'vir­tually repeals' Art. 31B of the Constitution and renders any violation of fundamental rights as an interference with the basic structure of the Constitution.^[323] If one were to accept their arguments, the Ninth Schedule would be effectively eliminated as a response mechanism and Parliament could no longer invoke it in order to respond to judgments striking down legislation. These arguments are now worth considering.

Sorabjee's contention fails to consider that C oelho and subsequent judgments emphasize that different tests must be applied in determin­ing the validity of constitutional amendments altering the substantive content of fundamental rights and those merely inserting legislation into the Ninth Schedule, seeking to protect it from judicial scrutiny. In the case of the former, the 'essence of rights test' (as opposed to the 'rights test') is applied,^[324] according to which the court focuses on the impact of the amendment on the overarching principles espoused by the Constitution rather than on the specific rights amended.^[325] This means that fundamental rights could, quite plausibly, be amended to protect certain kinds of legislation that would otherwise be invalidated, without breaching the overarching principles forming part of the basic structure, for instance, secularism and federalism.

The Supreme Court's judgment in Indian Medical Association v. Union of India^[326] confirms this claim. In 2005, Parliament inserted Art. 15(5) into Part III of the Constitution through a constitutional amend­ment.^[327] The amendment was directed at nullifying earlier decisions^[328] of the Supreme Court holding that state-sanctioned imposition of reservation policy on non-minority unaided educational institutions breached the freedom to carry on any occupation, trade, or business under Art. 19(1)(g). Delhi enacted primary legislation,^[329] which, in the absence of Art.15(5), would have been struck down as invalid. The con­stitutionality of the insertion of Art. 15(5) into the Constitution was challenged on the touchstone of the basic structure doctrine. Rejecting the challenge, the Court observed that the question was not whether a fundamental right itself was amended, but whether, applying the 'essence of rights' test, the overarching constitutional principles con­necting fundamental rights were abrogated.^[330] Thus, an amendment to a fundamental right effectively shielded legislation that would have been struck down in its absence, without failing the basic structure test.

The arguments of Randhawa and Jaising, which call into question the operational space available to Parliament after Coelho, are belied by the fact that in Coelho itself, the Court observed that some (and not all) fundamental rights (including Arts 14,^[331] 15,^[332]8 19,^[333] and 21^[334]) formed a part of the basic structure.^[335] Further, applying the 'rights test', not every amendment that had some effect on even those fundamental rights pertaining to the basic structure would be considered invalid—only those which abridged or abrogated the fundamental right, examined with reference to each individual case, would fail the basic structure test.^[336] If this were not the case, then Art. 31B of the Constitution would become an empty provision—an outcome that the Supreme Court has been conscious to avoid.^[337]

Judges in Coelho and in previous cases have offered examples of legislation that might be struck down for breaching Part III, but could be validly revived through the Ninth Schedule. For example, in Coelho, Sabharwal C.J. held that freedom might be interfered with (presumably, to a limited extent) in cases relating to terrorism without the basic struc­ture doctrine being triggered.^[338] In a previous decision, Chandrachud C.J. observed: 'If by a constitutional amendment, the application of articles 14 and 19 is withdrawn from a defined field of legislative activ­ity, which is reasonably in public interest, the basic framework of the Constitution may remain unimpaired.'^[339] Krishna Iyer J. expressed the argument: '[W]hat is a betrayal of the basic feature [sic] is not a mere violation of Article 14 but a shocking, unconscionable or unscrupu­lous travesty of the quintessence of equal justice... the constitutional fascination for the basic structure doctrine [cannot] be made a Trojan horse to penetrate the entire legislative camp fighting for a new social order.'^[340] These quotations comprise judicial confirmation of the space available to Parliament to invoke the Ninth Schedule as a response mechanism to judgments striking down primary legislation for breach­ing fundamental rights.^[341]

Overall, it can be concluded that the exercise of the power to strike down statutes has not necessarily constituted the last word on rights- based questions. Judicial interpretation of rights under the old model has not been as determinative as proponents of the new model seem to suggest. Two parliamentary response mechanisms have, individu­ally or in conjunction, channelled political responses to the striking down of legislation. As Pratap Bhanu Mehta puts it (albeit in a slightly broader context), an 'iterative game of action-response-rejoinder' is in motion.^[342] The important point to bear in mind is that political actors in India retain the space to respond to the striking down of legisla­tion (an articulation of judicial rights reasoning) through fundamental rights amendments and Ninth Schedule amendments.

Response Mechanisms Not Requiring Supermajorities

Even though the Indian Constitution is amongst the more frequently amended codified constitutions in the world,^[343] constitutional amendments are not always easy to enact. The proliferation of regional political parties^[344] coupled with fractured electoral mandates has meant that securing a two-thirds majority in Parliament requires support cutting across party lines. It is unsurprising, then, that Indian govern­ments have also attempted to invoke response mechanisms that do not require parliamentary supermajorities. Amongst these is the strategy of enacting ordinary legislation, or promulgating an 'ordinance', that effectively detracts from the court's judgment.

Ordinances are temporary statutory instruments that may be pro­mulgated by the president at the federal level, or governors at the state level.^[345] Quite remarkably, they have the 'same force and effect' as ordi­nary legislation.^[346] Ordinances can only be promulgated when the rel­evant legislature is not in session, need to be laid before the legislature during its next session, and if not enacted as law, expire within six weeks after the start of the legislative session.^[347] Since the president and the governors act on the advice of the Cabinet of Ministers of the relevant (Union or state) government, in practice, it is the relevant government which decides whether or not an ordinance should be enacted. This provides the government with a way of revising judicial decisions that does not even require a simple legislative majority until the ordinance is laid before the relevant legislature.

Legislation or ordinances may either attempt to reject a court's judg­ment striking down legislation outright, or instead, respond to it in a more nuanced, subtle way. One highly publicized effort to do the former failed to materialize. In Lily Thomas v. Union of India,^[348] the petitioners challenged the constitutional validity of a statutory provi­sion^[349] that protected sitting MPs from immediate disqualification on the grounds of conviction for a criminal offence. The statutory provi­sion allowed them a period of three months before the disqualification operated, within which they could appeal against their conviction to a higher court. The Indian Supreme Court struck down the provision on the basis that it discriminated between sitting parliamentarians and potential parliamentarians.^[350] Given that this judgment would have affected many existing MPs, the government led by the Congress party swiftly introduced a bill in the Rajya Sabha (Upper House)^[351] and later, sought to promulgate an ordinance^[352] that would have reversed the effects of the Supreme Court's judgment.^[353] However, the government's efforts came to a grinding halt after Rahul Gandhi, the vice president of the Congress party, publicly derided the attempt—much to the embar­rassment of the government.^[354]

In a another prominent case,^[355] the Supreme Court struck down a statutory ban imposed by the government of Maharashtra on dance performances in bars, except in certain establishments, such as hotels rated three-stars and above. The Supreme Court adopted two lines of reasoning. First, it was impermissible for the state to distinguish between 'posh' hotels and other establishments seeking licences for dance performances. Second, the ban had proven to be counterproduc­tive, resulting in the unemployment of over 75,000 women, many of whom were forced by circumstances to engage in prostitution. Unhappy with the Court's decision, the state government almost instantly began exploring legal options to override the judgment and decided to pass a bill imposing a blanket ban on dance performances in all bars.^[356] The bill effectively sought to reject the judgment outright and failed to address the issues concerning the loss of livelihood and large-scale unemployment that were raised in the Court's judgment. It waits to be tested in a second round of litigation, though it is almost certain to be struck down again.

We do not have the benefit of 'sequel' judgments to these responses that have attempted to reject outright Indian Supreme Court judgments striking down legislation. But all indications are that responses of this nature are, at best, likely merely to postpone the legislature's defeat. This is because, unlike fundamental rights amendments, amendments through ordinary legislation or ordinances encounter the same consti­tutional hurdles as the original legislation did, and fail to comply with the court's original judgment to an extent that would prompt the court to allow the legislative response to pass constitutional muster. As the Supreme Court said in a slightly different context: 'A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances.'^[357] And unlike Ninth Schedule amendments, they are not insulated from judicial review in any way.

However, more nuanced responses through ordinary legislation or ordinances, which take into account the court's reasoning at least partially, stand a better chance in the second round of litigation. For instance, in Nandini Sundar v. S tate of Chhattisgarh,^[358] the Supreme Court was called upon to decide the constitutional validity of the estab­lishment of a state-sponsored armed civilian vigilante group, going by the name of Salwa Judum, which was intended to counter insurgent militant groups in the state.^[359] Untrained and poorly paid tribal youth were appointed as 'special police officers', participating in anti-insur­gency operations. It was widely reported that the Salwa Judum itself was involved in widespread human rights violations and atrocities.^[360] The Court held that the mobilization of Salwa Judum violated the right to equality before the law under Art. 14 of the Constitution. According to the Court, subjecting untrained, poorly educated members of the tribal communities to the same dangers as the regular state police force was discriminatory. Moreover, the right to life under Art. 21 was breached on account of the fact that, as experience had shown, employ­ing such persons in counter-insurgency operations endangered the lives of others in society. The Court therefore disbanded the Salwa Judum and directed the state to recall firearms provided to its members.^[361]

Soon after the judgment, Chhattisgarh's governor promulgated an ordinance^[362]—later to become legislation^[363]—that sought to address some of the Supreme Court's concerns. This was done by increasing the pay scales of the members of the force, mandating greater training of officers, and providing that members of the force would be eligible to be recruited as part of the regular state police. The state undoubt­edly enacted legislation in the hope that it would have allayed the Supreme Court's concerns and would no longer need to disband the force altogether. Presumably, the argument to be made on behalf of the state is that by 'regularizing' the Salwa Judum, the mobilization of the force could no longer be labelled as discriminatory,^[364] and that by providing greater training and benefits, its establishment was 'fair, just, and reasonable' and hence would not violate the right to life under Art. 21.^[365]

Another way in which the government can respond to judgments striking down legislation is by filing a 'review petition' in the Supreme Court, seeking reconsideration by the Court of its own judgment.^[366] At first, it may seem somewhat odd to characterize a review petition as a political response mechanism to the striking down of legislation. But what it effectively constitutes is the government telling the court that in its opinion, the court had got its rights reasoning wrong and should there­fore reconsider its judgment. Although review petitions are filed quite frequently, they rarely ever succeed—making it safe to say that this is a particularly low-yield response mechanism.^[367] The Supreme Court only allows review petitions if the petitioner (for our purposes, the gov­ernment) is able to prove that the court committed an 'error apparent on the face of the record'.^[368] This means that the government must not only show that the Court got it wrong, but that its rights reasoning was glaringly and quite obviously mistaken. The Indian Supreme Court has even established a second review petition (or a 'curative petition') jurisdiction, but the burden that needs to be discharged in order to successfully invoke this jurisdiction is even higher.^[369]