TABLE OF CONTENTS

TABLE OF CASES. 2

INTRODUCTION.. 4

RESEARCH METHODOLOGY.. 7

PART I – CONSTITUTIONAL DEVELOPMENTS POST THE FIRST AMENDMENT   10

PART II- ANALYSIS OF THE ISSUES RELATED TO A. 31B   18

CONCLUSION.. 26

BIBLIOGRAPHY.. 28

TABLE OF CASES1. Bhim Singhji v. Union of India (1981) 1 SCC 166.2. C. Masilamani Mudaliar v. The Idol of Sri Swaminathaswami Swaminathaswami

Thirukoli MANU/SC/0441/1996.3. Chandra Bhavan v. State of Mysore AIR 1970 SC 2024.4. Consumer Education and Research Centre v. Union of India MANU/SC/0175/1995.5. Dalmia Cement (Bharat Ltd.) v. Union of India MANU/SC/1585/1996.6. Dwarakadas Srinivas v. Sholapur Spinning and Weaving Co. AIR 1954 SC 119.7. Grih Kalyan Kendra v. Union of India AIR 1991 SC 1173.8. I.R. Coelho v. State of Tamil Nadu MANU/SC/1031/1999.9. Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299.

10.  Indra Sawhney (II) v. Union of India (2000) 1 SCC 168.

11.  Jilubhai Nanbhai v. State of Gujarat 1994-(SC2)-GJX -0622 –SC.

12.  Kameshwar v. State of Bihar AIR 1951 Pat 91.

13.  Kanhaiyalal Sethia v. Union of India MANU/SC/1250/1997.

14.  Karimbil Kunhimokan v. State of Kerala AIR 1962 SC 723.

15.  Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461.

16.  Krishnaswami Naidu v. State of Madras AIR 1964 SC 1515.

17.  Minerva Mills v. Union of India MANU/SC/0075/1980.

18.  N.B. Jeejeebhoy v. Assistant Collector, Thana MANU/SC/0248/1964.

19.  P. Vajravelu v. Spl. Dy. Collector AIR 1965 SC 1017.

20.  PWD Literate Daily Wages Employees Association v. State of Karnataka AIR 1990 SC 883.

21.  R.C. Cooper v. Union of India (1970) 1 SCC 248.

22.  Raghunath Rao v. Union of India AIR 1993 SC 1267.

23.  Samatha v. State of Andhra Pradesh MANU/SC/0832/1997.

24.   Sanjeev Coke v. Bharat Coking Coal AIR 1983 SC 239.

25.  Shankari Prasad Singh v. Union of India AIR 1951 SC 458.

26.  Srinivasa v. State of Karnataka AIR 1987 SC 1518.

27.  State of Bihar v. Kameshwar MANU/SC/0019/1952.

28.  State of Tamil Nadu v. Abu AIR 1984 SC 326.

29.  State of West Bengal v. Mrs. Bela Bannerjee AIR 1954 SC 170.

30.   Tara Chand v. Chairman & Disciplinary Authority MANU/SC/1161/1997.

31.  Tatoba Bhau v. Vasantraj Deshpande MANU/SC/0612/2001.

32.  Union of India v. Metal Corporation AIR 1967 SC 637.

33.  Waman Rao v. Union of India (1981) 2 SCC 362.

34.  State of Madras v. Champakam Dorairajan AIR 1951 SC 226.

INTRODUCTIONWhen India became independent, in 1947, a huge majority of her people were living in rural areas and were dependent on the agrarian economy for their livelihood. The state of this economy was very poor, primarily as a result of the policies of the British government in India. At the time of independence, 57 percent of the privately cultivated land was managed according to the Zamindari system, under which land-owners extracted rent from the tillers and cultivators and paid a part of it to the State, and 38 percent by the Ryotwari system, wherein a direct settlement was made between the State and the proprietor of the land. These systems of land

tenure led to the emergence of a large, non-cultivating, land-owning class of people, who were unconcerned with improving the quality of land, and interested only in deriving a personal benefit from it. Thus, not only did the agrarian economy suffer from negligible capital formation, outdated production methods and low yields, it was also characterised by the exploitation of the cultivators, who had no tenancy rights, at the hands of moneylenders, Zamindars and Ryots, who owned most of the land.[1]

When the Indian Constitution was adopted in 1949, it contained within it a clear mandate for the achievement of social and economic justice. This goal was made explicit in the Objectives Resolution of 1947, and in the Preamble to the Constitution.[2] Granville Austin has argued that one of the three strands which constitute the ‘seamless web’ of the Constitution is the goal of social revolution.[3] Pursuant to this goal, the Directive Principles in Part IV of the Constitution expressly enjoin the State to organize the material resources of the community so as to promote economic justice and the common good. Naturally, given the state of the agrarian social and economic structure at the time, reforms in that sector became a priority in this endeavour. Accordingly, several land reform legislations were passed by various States, aimed mainly at the abolition of intermediaries in the agricultural economy, and the institution of land ceilings. However, problems regarding the constitutional validity of these legislations soon arose, in the context of the fundamental rights chapter of the Constitution. In 1950, the Bihar Land Reforms Act was challenged before the Patna High Court in Kameshwar v. State of Bihar [4]. The petitioner’s contention was that the law, which provided for acquisition by the State of land belonging to zamindars, on payment of a certain compensation depending on the zamindar’s income, was violative of the right to equality under A. 14. This contention was upheld by the High Court, in a decision which has been described as “patently wrong”[5]. Meanwhile, the High Courts of Allahabad and Nagpur upheld the validity of similar legislation in Uttar Pradesh and Madhya Pradesh respectively. Appeals from these three decisions were pending before the Supreme Court, along with petitions filed by other zamindars in respect of similar issues. At this point, the Union Government, anxious to put an end to such litigation, effected the First Amendment Act, under which A.s 31A and 31B were inserted into Part III of the Constitution. The Statement of Objects and Reasons of the First Amendment Act makes it clear that the insertion of these provisions was aimed at securing the constitutionality of agrarian reform legislation, and avoiding a repeat of Kameshwar.[6] This is the historical background to the Ninth Schedule, which was added to the Constitution along with A. 31B. The controversy that surrounds it is easy to understand, given the nature of this provision.

The wording of A. 31B remains the same today as when it was introduced in 1951. It reads:

Validation of certain Acts and Regulations- Without prejudice to the generality of the provisions contained in A. 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, 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.

A reading of A. 31B establishes that it operates to immunize legislations from challenge on the grounds that they violate fundamental rights. Furthermore, it acts retrospectively to confer validity on Acts and Regulations which have been previously declared void under A. 13, such that these Acts and Regulations are to be treated as having been valid since their inception. On a plain reading, this seems a drastic provision- several members of Parliament who opposed the First Amendment criticized it as undemocratic, on the grounds that it eradicates the judicial review of laws as against the provisions of Part III.[7] It has also been argued that A. 31B represents a wrong method of constitutional amendment, which should ideally consist in the laying down of certain broad principles, the implications of which are left to the judiciary to concretise.[8] It is certainly true that A. 31B is a unique provision, the equivalent of which is not present in any other democratic constitution[9]. Accordingly, this paper attempts to probe the fundamental issue of whether it is or is not a valid and useful addition to the Constitution. In order to accomplish this aim, the historical context in which the Ninth Schedule was added to the Constitution, as well as the various constitutional developments that followed its addition, require scrutiny, so as to both appreciate the pressing nature of the problems that subsist today, in respect of the Ninth Schedule, as well as provide clues for their solution. The genesis of the Ninth Schedule has already been described, but its implications, taken in conjunction with the various new developments that have occurred since the First Amendment, are explored fully in the rest of this paper.

RESEARCH METHODOLOGYAims and Objectives

The main objective of this paper is to provide solutions to the various problems that are today associated with the Ninth Schedule. In order to accomplish this, this paper also aims at sketching the history of the Ninth Schedule, and providing a perspective on the various constitutional developments that followed its inception, in light of which these problems have now emerged.

Scope and Limitations

The scope of this paper extends to an overview of the genesis and history of the Ninth Schedule from the time it was first introduced until today, as well as an analysis of the problems of interpretation and application that now surround it. In particular, the issues dealt with relate to a) what the proper scope of the Ninth Schedule should be, having regard to both the historical context in which it arose and the correct textual interpretation of A. 31B, b) the grounds on which additions to the Ninth Schedule can be invalidated, in view of the basic structure doctrine and the ambiguity in existing Supreme Court rulings as to its implications for A. 31B, and c) the effect of the 44th Amendment on the practical utility of the Ninth Schedule. In providing solutions to these problems, the larger issue of whether a provision such as A. 31B is required today, and whether there exist alternative methods of achieving the same end as it seeks to, is also tackled.

Research Questions

1. In what context, and for what reasons, was A. 31B, together with the Ninth Schedule, added to the Constitution?

2. What are the problems pertaining to the Ninth Schedule that subsist today, in light of the various constitutional developments that have occurred since its inception?

3. What is the correct interpretation of A. 31B- what kind of laws should the Ninth Schedule properly include?

4. What are the grounds on which an addition to the Ninth Schedule can be challenged?5. What has been the effect of the 44th Amendment on the practical utility of the Ninth

Schedule?6. Is a provision such as the Ninth Schedule required today- do there exist any alternative

ways of achieving the purpose for which it was added?

Chapterisation

The paper is divided into two parts- the first traces the various constitutional developments that followed the inception of the Ninth Schedule, relating to the constitutionality of A. 31B, its scope, and the grounds on which additions to it can be challenged. In doing so, the various questions that remain unanswered today, in respect of the Ninth Schedule, are identified. In the second part, these questions are answered, and the larger issue of the need for such a provision is also dealt with, having regard to the possibility of alternatives to the Ninth Schedule.

Sources of Data

The sources of data are provided in full in the bibliography. The researcher has used the following kinds of materials-

1. Books.2. Case Reporters.3. Journals.4. Websites.

Method of Writing

In the first part of this paper, the method of writing is largely descriptive of the developments that have taken place after the First Amendment.

In the second part, the method of writing is entirely analytical, with respect to the problems associated with the Ninth Schedule today.

Mode of Citation

A uniform mode of citation has been followed consistently throughout the paper.

PART I – CONSTITUTIONAL DEVELOPMENTS POST THE 1st AMENDMENT

1st, 4th and 17th Amendments- Challenges to Constitutionality

Soon after its inception, the constitutionality of the First Amendment Act was challenged in Shankari Prasad Singh v. Union of India[10]. The grounds for challenge were, inter alia, that A.s 31A and 31B made changes in A.s 132 and 136 in Chapter IV of Part V and A. 226 in Chapter V of Part VI, and accordingly that they required ratification under clause (b) of the proviso to A. 368, in the absence of which they were void. It was also contended that A. 31B was unconstitutional, as the laws which were included in the Ninth Schedule by the Act related to matters enumerated in List II, in respect of which only State legislatures and not Parliament had the power to make laws[11]. These arguments were rejected by the Court, which held, first, that the Amendment only excluded a certain category of cases from the discipline of Part III, and did not curtail the jurisdiction of the Courts, and further that the operation of A. 31B involved the amendment of the Constitution, the power to do which lay with Parliament. It was also argued by the petitioner that the amendment was a ‘law’ under A. 13(3) and hence void under A. 13(2). This plea was not accepted by the Court, which relied on a supposed distinction between constituent and legislative powers to exclude constitutional law from the purview of A. 13(2). Thus, the constitutionality of the 1st Amendment, incorporating A.s 31A and 31B, was upheld by the Court.

There were no further additions to the Ninth Schedule until the 4th Amendment Act of 1955. The objective of this Act was stated to be along the lines of the 1st Amendment- i.e. the promotion of agrarian reform. At this time, the scheme of A. 31 was as follows: clause 1 provided that no person was to be deprived of his property except by authority of law; clause 2 provided for compensation in case property was acquired for public purposes by the State, clause 3 mandated the assent of the President in case a State legislature passed a law covered by clause 2, and clauses 4 to 6 recognized various limitations on the duty to pay compensation, imposed on the State by clause 2. A. 31A stated that no law providing for the acquisition of an ‘estate’ would be void for infringement of any provision of Part III. By the Fourth Amendment, the issue of the adequacy of compensation paid under A. 31(2) was made non-justiciable[12], and a new clause was substituted for clause 1 of A. 31A, to expand its ambit to include other kinds of legislation besides those relating to the acquisition of estates; however, the protection afforded by the A. was now confined to A.s 14, 19 and 31, as it was with respect to these that litigation was thought to be likely to arise[13]. Importantly, the Amendment Act also added entries 14 to 20 to the Ninth Schedule. An examination of these reveals that entries 17, 18 and 19 are unrelated to agrarian reform. Entry 17 inserts certain sections of the Insurance Act of 1938; entry 18 is the Railway Companies (Emergency Provisions) Act of 1951; and entry 19 is Chapter III-A of the Industries (Development and Regulation) Act of 1951. It is submitted that in light of the historical background of the Ninth Schedule, inclusion of such laws under its rubric is a misuse of the provision. It will be argued later that on a proper construction of the text of A. 31B, such

inclusions can be struck down as unconstitutional. In fact, the 4th Amendment marked only the beginning of the serious misuse of A. 31B, which was to take place subsequently.

The next additions to the Ninth Schedule were brought about by the 17th Amendment Act. This Act became necessary following the Supreme Court decisions in Karimbil Kunhimokan v. State of Kerala[14] and A.P. Krishnaswami Naidu v. State of Madras[15], in which the Court had excluded the respective State legislations from the protection of A. 31A. To address the lacuna exposed by these cases, Parliament amended the definition of ‘estate’ in A. 31A, to include Acts such as the ones which had been declared void. Additionally, 44 Acts, dealing mainly with the abolition of tenures and acquisition of land for the settlement and rehabilitation of refugees were added to the Ninth Schedule.

In Sajjan Singh v. State of Rajasthan[16], the Supreme Court considered the constitutionality of the 17th Amendment Act, which was challenged chiefly on the same grounds as in Sankari Prasad. In addition, it was also contended that insofar as the Ninth Schedule sought to set aside the decisions of competent Courts in respect of the legislations, it was unconstitutional. To this, the Court replied that Parliament had the power to amend the Constitution prospectively and retrospectively, and therefore had the power to validate laws previously declared void, in spite of the judgement of any Court. Insofar as the other arguments were concerned, the Court applied Sankari Prasad, and the petition was accordingly rejected.

The Basic Structure Doctrine and its implications for A. 31B

The decisions of the Supreme Court in Sankari Prasad and Sajjan Singh were overruled by the Court in Golaknath v. State of Punjab[17], in which certain sections of the Punjab Security of Land Tenures Act of 1953 were challenged by the petitioners as violative of their rights under A.s 19(1)(f), 19(1)(g) and 14. Since this Act had been included in the Ninth Schedule by the 17th Amendment, the constitutionality of that Amendment, along with that of the 1st and 4th Amendment was also questioned, on the grounds that Parliament had no power to abridge fundamental rights, whether by law or by amendment. The Court upheld this contention, holding that the word ‘law’ in A. 13(2) included amendments. However, in recognition of the fact that the agrarian structure of the country had been transformed as a result of these amendments, and a declaration that they were void would lead to chaos, the Court made its decision prospective. Following this ruling, Parliament enacted the 24th Amendment Act, which expressly provided that A. 13 did not apply to amendments under A. 368. Then, in 1971, the 25th Amendment Act was passed, in response to several Supreme Court decisions which were considered detrimental to the socio-economic progress the government aimed at achieving.[18] By this Act, clause 2 of A. 31 was amended to replace the word ‘compensation’ by ‘amount’, clause 2B was added to protect laws covered by clause 2 from the right to property in A. 19(1)(f) and A. 31C was added to the Constitution. The constitutionality of the 24th, 25th and the 29th Amendment Act, which had inserted two amendments to the Kerala Land Reforms Act into the Ninth Schedule, came under scrutiny in Kesavananda Bharati v. State of Kerala[19]. The Supreme Court, in upholding the validity of the 24th and 29th Amendments, and of the first part of A. 31C inserted by the 25th Amendment, evolved the doctrine of ‘basic structure’. According to this ruling, by which the decision in Golaknath was overruled, Parliament had the power to amend all parts of the Constitution, subject to the implied limitation that it could not damage its basic or essential

features. Insofar as the 1st, 4th and 17th Amendments were concerned, the Court in Kesavananda did not test their validity against the basic structure doctrine, as the question did not arise in the case. However, C.J. Sikri and JJ. Hegde, Mukherjea and Jagmohan Reddy were of the view that the basic structure theory would apply to laws sought to be included in the Ninth Schedule. Subsequently, this approach was departed from in Indira Nehru Gandhi v. Raj Narain[20] where it was held that the basic structure doctrine had no application to ordinary legislation, and therefore could not be used to test the constitutionality of any law in the Ninth Schedule. However, this ruling was later abandoned by the Court in Waman Rao v. Union of India[21].

In Waman Rao v. Union of India, the implications of the basic structure doctrine for A. 31B were re-examined by a five-judge bench of the Supreme Court. The constitutionality of A. 31B, as well as of A.s 31A and 31C (as it was before the 25th Amendment) was questioned on the grounds that it violated the basic structure of the Constitution. The majority judgment, delivered by C.J. Chandrachud, rejected this contention, and held that inasmuch as the impugned A.s were aimed at fulfilling the mandate of social and economic justice through agrarian reform, they were in conformity with the Constitution’s basic structure. Insofar as A. 31B was concerned, the Court drew a line of demarcation at April 24, 1973- the date of Kesavananda Bharti’s decision- and held that all the amendments which added to the Ninth Schedule before that date were valid. All future amendments were held to be challengeable on the grounds that the Acts and Regulations which they added to the Ninth Schedule damaged the basic structure.[22] Although the Court gave no ruling on the validity of any such post-Kesavanada amendment, it did hold that a challenge on the grounds of violation of basic structure, to an Act or Regulation which was protected by A. 31A or A. 31C would be otiose. This was because, in the opinion of the majority, such laws were in any case protected against A. 14 and 19[23], and laws of the type covered by these A.s were not likely to infringe any other fundamental right. The majority’s reasoning appears to be based on the view that a violation of A. 14 or A. 19 cannot constitute damage to the basic structure. This was also one reason for the Court holding that all pre-Kesavananda amendments to the Ninth Schedule were valid, as, except for entries 17,18 and 19, the rest of the Acts included by them were covered by A. 31A.  However J. Bhagwati, who delivered a separate judgement, observed that it was possible for the violation of a fundamental right to constitute a violation of the basic structure, depending on the nature of the right and the extent and depth of its infringement. Thus, there was a lack of clarity as to the precise grounds on which an Act’s inclusion in the Ninth Schedule could be challenged.

Subsequently, the same bench decided the case of Bhim Singhji v. Union of India[24]. In that case, the majority judgment partially invalidated S. 27(1) of the Urban Land (Ceiling and Regulation) Act, 1976, on the grounds that it violated A. 14 by providing for unbridled administrative discretion as to the transfer of land within a ceiling area, and this violation was unrelated to the object of the Act. However, the law had been included in the Ninth Schedule, and the question of whether this inclusion was valid, or whether the Ninth Schedule afforded protection against the violation of A. 14, was not addressed by the majority. J. Tulzapurkar and J.Sen, however, who gave separate judgements striking down different provisions of the Act, felt it necessary to first establish that it was not protected by A. 31B by arguing that certain provisions therein violated the basic structure of the Constitution. As such, there is still no clear ruling on the issue left unclear in Waman Rao. In recognition of this, the question of “whether an Act or regulation which, or a part of which, is or has been found by this Court to be violative of

one or more of the fundamental rights conferred by A.s 14, 19 and 31 can be included in the Ninth Schedule or whether it is only a constitutional amendment amending the Ninth Schedule that damages or destroys the basic structure of the Constitution that can be struck down” has been referred to a larger bench of the Supreme Court in I.R. Coelho v. State of Tamil Nadu[25]. This issue will be addressed in the next chapter of this paper.

Misuse of the Ninth Schedule

The 34th Amendment added 17 and the 39th Amendment 41 more Acts to the Ninth Schedule. A further 64 Acts were included by the 40th Amendment. Three entries were removed by the 44th Amendment; subsequently the 47th Amendment added 14 Acts, the 66th Amendment added 55, the 76th Amendment added 1 Act, and the 78th added 28. Today there are a total of 284 Acts and Regulations included in the Ninth Schedule.

A study of these entries reveals that there has been a rampant misuse of the Ninth Schedule, to the extent that it has now become a convenient repository for all controversial legislations. It is apparent from the Statement of Objects and Reasons of the 1st Amendment that the Ninth Schedule was meant exclusively for land reform legislations. Even while introducing the Bill in Parliament, Jawaharlal Nehru had made this clear[26]. But apart from agrarian reform laws, the Ninth Schedule has been used to protect laws relating to industrial development[27], economic offences[28], elections[29], the press[30], reservations[31] and other subjects[32] for which it was not intended. The question of how this issue can be tackled will be dealt with in the next chapter.

Effect of the 44th Amendment

In 1978, Parliament enacted the 44th Amendment Act, which made certain important changes to the scheme of property rights under the Constitution. Prior to this Amendment, the position with respect to property rights was as follows- A. 19(1)(f) gave to every citizen the right to hold, acquire and dispose of property, as a facet of his or her freedom. A. 31 dealt with the State’s power of eminent domain- i.e. its power to acquire or requisition property for a public purpose, on payment of an amount fixed by law.[33] After the 44th Amendment, A. 19(1)(f) was deleted, as was A. 31. However a new A. -300A- was added to the Constitution, which reproduced A. 31(1), providing that no person was to be deprived of his property save by authority of law. Besides this, the Amendment deleted three entries from the Ninth Schedule. In this section, the nature of property rights that subsist today, post the 44th Amendment, will be considered, while the effect of this amendment on the scope and utility of A. 31B will be studied in the next chapter.

State’s Power of Eminent Domain

P.K. Tripathi has argued that the effect of this Amendment is to make the right to property stronger than ever before. According to him, the two conditions on the exercise of the power of eminent domain- that it should be for a public purpose, and that compensation should be paid- will have to be read into A. 300-A, whereas the various limitations on, and exemptions from, these conditions, which were enumerated in the unrepealed A. 31, have now ceased to exist.[34]

However, the Supreme Court decision in Jilubhai Nanbhai v. State of Gujarat[35] has clarified that there is no requirement to pay compensation, as defined in State of West Bengal v. Mrs. Bela Bannerjee, under A. 300- and that any amount, so long as it is not illusory, is sufficient, even if it does not bear a reasonable relationship with the value of the property acquired.[36]

Therefore, it can be said that the substance of the constitutional right under A. 300-A is more restricted than that which was provided by A. 31.[37] It is also submitted that such a restrictive interpretation of A. 300A is correct, and in consonance with Parliament’s intention in deleting completely the second clause of A. 31.

Right to Property

Although A. 19(1)(f) has been deleted, this does not mean that there is no fundamental right to property anymore, in any context. This is because there are certain fundamental rights which provide, either expressly or by necessary implication, for a right to property. For example, A. 26 specifically guarantees to religious denominations the right to own and acquire property and A. 29 gives to any section of citizens having a distinct script, language or culture, the right to conserve the same. Since such conservation necessarily requires property, there must be a right to property implicit in A. 29. The same is the case with A. 30. Additionally, it may even be argued that the right to carry on any occupation, trade or business is not meaningful without a right to property. Even A. 21, which the Courts have been interpreting very liberally, may one day be said to include a right to property.[38] Therefore, it would be fallacious to argue that the deletion of A. 19(1)(f) has eradicated the right to property in toto.

PART II- ANALYSIS OF THE ISSUES RELATED TO A. 31BIn this chapter an attempt will be made to address various unanswered questions. As has been shown, the history of the Ninth Schedule has not been without incident, and today it is marked by a number of pressing problems. In this section, three questions related to the nature and scope of A. 31B are answered, and thereafter, a final comment is made as to the need for such a provision.

the nature and scope of the ninth schedule

1. 1. What kind of laws should be covered by A. 31B?

It has already been pointed out that the Ninth Schedule has today become a haven for every controversial law passed by the government of the day. Such a situation was not envisaged at the time the First Amendment was enacted. It is argued here that a correct interpretation of the language of A. 31B can effectively end this problem.

The opening words of A. 31B are ‘Without prejudice to the generality of the provisions contained in A. 31A’. These words were interpreted by the Supreme Court in N.B. Jeejeebhoy v.

Assistant Collector, Thana[39] as implying that “the Acts and regulations specified in the Ninth Schedule would have the immunity even if they did not attract Art. 31A of the Constitution.”[40] The Court’s reasoning was that “if every Act in the Ninth Schedule would be covered by Art. 31A, this A. would become redundant.”[41] Further, they derived support from the existence in the Ninth Schedule of laws unrelated to ‘estate’ as defined in A. 31A(2), and concluded that A. 31B was not governed by A. 31A.[42] It is submitted that this reasoning is fallacious, and that the correct conclusion was arrived at by J. Bhagwati in Minerva Mills v. Union of India[43], when he stated that “the 9th Schedule of A. 31-B was not intended to include laws other than those covered by A. 31-A.”[44] In this regard, it is submitted that the correct interpretation of the phrase ‘without prejudice to the generality of A. 31A’ can be arrived at in the following way.  The ambit of A. 31A extends to five types of laws, corresponding to sub-clauses a) to e) of its first clause. Now, by providing that A. 31B does not detract from the generality of A. 31A, what is meant is that although a law may be included in the Ninth Schedule under A. 31B, this does not mean that it is thereby deprived of the protection afforded by A. 31A. A rough parallel can be drawn between these two A.s and Ss. 16(1) and 16(2) of the Indian Contract Act, where S. 16(2) is said to be without prejudice to S. 16(1). It is provided in S. 16(1) that undue influence occurs when the relations between parties are such that one is in a position to dominate the will of the other, and uses that position to obtain an unfair advantage over the other. S. 16(2) then goes on to illustrate two instances in which one party can be said to be in a position to dominate the will of the other, with the caveat that these two instances do not prejudice the possibility of there existing many others, which would be covered by S. 16(1). Thus, what is defined in S. 16(2) is also independently defined in S. 16(1), although there may be many cases not defined in S. 16(2) that are nevertheless covered by S. 16(1). Similarly, the kind of laws which are entitled to protection under A. 31B are also necessarily entitled to protection under A. 31A, although there may be many laws under A. 31A which are not covered by A. 31B- i.e. which are not included in the Ninth Schedule. In fact, there would be no purpose in providing that A. 31B does not detract from the generality of A. 31A unless their subject matters overlapped. As for the reasoning in Jeejeebhoy, the Court was wrong in supposing that the above interpretation would make A. 31B redundant, because the protection it affords is greater than that provided by A. 31A. Also, the fact that there exist many laws in the Ninth Schedule unrelated to A. 31A is indicative, not of the correct use of A. 31B, but of its blatant misuse. Therefore, it is submitted that A. 31B should be interpreted as above, so as to render unconstitutional any additions to the Ninth Schedule which are not covered by A. 31A[45].  In this connection, it is interesting to consider the recommendation made by the National Commission for the Review of the Working of the Constitution as to A. 31B. The recommendation is that a proviso be added to A. 31B, which would restrict the protection afforded by the Ninth Schedule to Acts and Regulations which relate-

a)      in pith and substance to agrarian reforms or land reforms;

b)      to reasonable quantum of reservation under article 15 and 16;

c)      to provisions for giving effect to the policy of the State towards securing all or any of the principles specified in clause b) or clause c) of article 39.[46]

It is submitted that this recommendation ought not to be adopted. Although the kind of laws mentioned in a) and c) above are the kind which the Ninth Schedule was intended to protect, nevertheless it is textually more correct and historically equally accurate to restrict the ambit of the Ninth Schedule to laws covered by A. 31A exclusively. As for reservation laws, it is submitted that the inclusion of such laws in the Ninth Schedule would simply perpetuate the misuse of A. 31B, which was never intended for their protection. It would also be dangerous to so amend the A., as it may set a precedent for future Parliaments to expand the scope of the A. as and when it is considered expedient, with regard to any controversial policy.

1. 2. What is the answer to the question posed for reference in I.R. Coelho v. State of Tamil Nadu?

As shown previously, there is considerable ambiguity as to the grounds on which the inclusion of an Act in the Ninth Schedule can be challenged. The exact issue that was raised in I.R. Coelho was “whether an Act or regulation which, or a part of which, is or has been found by this Court to be violative of one or more of the fundamental rights conferred by A.s 14, 19 and 31 can be included in the Ninth Schedule or whether it is only a constitutional amendment amending the Ninth Schedule that damages or destroys the basic structure of the Constitution that can be struck down.” The solution proposed here is based in part on the previous argument that every law which is sought to be included in the Ninth Schedule must be protected by A. 31A. It is a two-pronged solution. Firstly, it is submitted that no law which is violative of the basic structure can be included in the Ninth Schedule, irrespective of whether it is protected by A. 31A or A. 31C. Secondly, it is further submitted that even laws which do not affect the basic structure, but do violate some fundamental right, can only be included if such violation is incidental to the fulfilment of the object of that law, according to the terms of A. 31A.

The justification for this solution is simple. Firstly, the observations in Waman Rao that an Act protected by A. 31A or A. 31C need not be tested against the basic structure doctrine ignore the fact that the principle of equality, as embodied in A. 14, has been held to be part of the basic structure in numerous cases[47], and although, as Bhagwati J. pointed out in Bhim Singh, a violation of A. 14 need not necessarily amount to a violation of the basic structure, there is no doubt that this can be the case. Additionally, there may well arise instances where a law, despite being covered by A. 31A or 31C, is still in violation of some essential feature of the Constitution. Therefore, irrespective of whether or not the law is protected by A. 31A or A. 31C, if it is found violative of the basic structure, it must, in accordance with Kesavananda, be struck down. In fact, as has been argued above, no law can be included in the Ninth Schedule that is not protected by A. 31A, so if the judgment in Waman Rao were to be followed, then no such inclusion in the Ninth Schedule could ever be challenged for violation of the basic structure. Secondly, it is submitted that the protection afforded by the Ninth Schedule in respect of violation of fundamental rights subsists only if there is a direct nexus between the violation of the right and the achievement of the object of the Act, which object must, as argued above, necessarily pertain to the topics enumerated in A. 31A. It is undeniable that the object of adding A. 31A to the Constitution was not to protect legislations which indiscriminately curtail fundamental freedoms, but only to validate the necessary abridgement of individual rights, for the sake of agrarian reform. Therefore, it is submitted that although the majority judgement in Bhim Singhji did not show that the Act in question violated the basic structure, the decision is still correct on its own

reasoning, which was that the violation of the right in question (A. 14) was not related to the object of the Act. In such a case, even if the basic structure were not violated, the breach of A. 14 would not be protected against by the Ninth Schedule.

1. 3. What is the practical utility of the Ninth Schedule post the 44th Amendment?

By the 44th Amendment, A. 31(1) was deleted, but reproduced in A. 300A, and the right to property in A. 19(1)(f) was deleted in toto. It is argued here that although, at first glance, this may seem to have greatly reduced the practical utility of the Ninth Schedule, in reality it has not. As has been argued throughout this paper, the purpose of the Ninth Schedule is to protect laws related to agrarian reform from being struck down as violative of fundamental rights, in cases where such violation is necessary for the achievement of the law’s aim. It is true that in the majority of cases the rights which are likely to be violated by such laws are A. 14, A. 19(1)(f) and A. 31 as it was before the 44th Amendment. Therefore, now that A. 300A is beyond the reach of the Ninth Schedule, and there is no longer any A. 19(1)(f), it may be contended that the scope of the Ninth Schedule has dwindled greatly. But to assert this would be presumptuous. As has been argued previously, the right to property is still very much a part of several other rights, and even the right as it was in A. 19(1)(f) may well be read into A. 21. The Ninth Schedule would still operate to protect against these. As to A. 300A, even though its violation cannot be protected against by the Ninth Schedule any longer, it has been shown already that the substance of A. 300A is considerably weakened as compared to A. 31. Therefore its violation is in itself improbable. Accordingly, it is submitted that the practical utility of the Ninth Schedule, even after the 44th Amendment, is undeniable.

the need for the ninth schedule

A final issue, of a general nature, requires to be addressed at this stage, as to whether a provision such as A. 31B is required any longer. The issue will be tackled in two parts. Firstly, it will be shown that agrarian reform legislation is still very much needed today. Having established this, the question of whether there are any other ways of protecting such laws from A. 13(2), besides the Ninth Schedule, will be considered.

The fact that India’s agrarian reform programme is far from complete is beyond dispute. Not only does India have the largest number of landless rural households on the planet, but landlessness is, by far, the greatest predictor of poverty in India. In fact, the incidence of poverty among landless wage earners is as high as 68 %.[48] Although the focus today may have shifted from the abolition of intermediaries to other issues, such as security of tenancy, redistribution of ceiling surplus land to the landless and land rights of women, there is no doubt that much remains to be done in the sphere of agrarian reform.[49] As such, it cannot be said that A.s 31A and 31B have become redundant today. The more pertinent question is whether there is any method other than the Ninth Schedule by which land reform laws can be protected. It is submitted, in this regard, that the simplest way of achieving the aim of A. 31B would be for the judiciary to harmoniously interpret the fundamental rights with the directive principles. A.s 38 and 39, in particular A.s 39 (b) and (c) are of particular relevance to agrarian reform legislation. It is submitted that not only are these A.s, in common with the other directive principles, fundamental to the governance of the country, but they are also part of the basic structure of the

Constitution. In Kesavananda Bharti v. State of Kerala[50], JJ. Shelat, Grover, Hegde and Mukherjea held that one of the basic features of the Constitution was the mandate to build a welfare state, contained in the directive principles. This mandate is reflected in A.38, which enjoins the State to secure a social order for the promotion of the welfare of the people, and A. 39, which lays down several specific policy goals of the State that are necessary to achieve such an order.[51] Further, C.J. Sikri and J. P. Jaganmohan Reddy observed that several aspects of the basic structure could be discerned from the Preamble to the Constitution[52], and A. 38, as well as A. 39(b) and (c) have been held to be reflective of the goal of social and economic justice enshrined in the Preamble.[53] Therefore, had a sensible interpretation of A.s 14, 19 and 31 in particular, and Part III rights in general, been adopted, vis-à-vis A.s 38 and 39(b) and (c), then there would have been no need at all for A. 31B to be added to the Constitution. Since the decision in Minerva Mills v. Union of India[54] it has in fact become the practice of the Courts to read Part III in consonance with Part IV[55]. However, around the time of the First Amendment the Courts still viewed the Directive Principles as subservient to the fundamental rights[56], and, as was explicitly stated in the Statement of Objects and Reasons of the First Amendment Act, it was in the context of such judicial intransigence that the Ninth Schedule had become necessary. In fact, Jawaharlal Nehru, when introducing the First Amendment Bill in Parliament, stated that the Amendment was “merely giving effect to the real intentions of the framers of the Constitution, unless it is interpreted in a very narrow and legalistic way”[57] Even subsequently, it has been noted how judicial decisions in cases like Bela Bannerjee , Karimbil Kunhimokan and A.P. Krishnaswami Naidu necessitated constitutional amendments to the scheme of property rights, so as to give effect to the land reform programme. Today, however, there is no reason why the Courts should persist in ‘a narrow and legalistic interpretation’. In this connection, the decisions in Jilubhai and, in particular, Waman Rao, where the validity of the First Amendment was upheld in the face of the basic structure doctrine, are heartening. The majority in Waman Rao pointed out that it was “ironical” that “the laws providing for agricultural ceilings should be stigmatised as destroying the guarantee of equality when their true object and intendment is to remove inequalities in the matter of agricultural holdings.”[58] It is submitted that it would be highly improbable that a Court today would strike down any piece of agrarian reform legislation as violative of Part III, even if it were not included in the Ninth Schedule. However, despite the judicial opinion in favour of such a view, there is still no explicit ruling to this effect. If the Courts do take this stand it would render the Ninth Schedule redundant, and A. 31B could then be safely repealed. Not only would this have the beneficial effect of eradicating further misuse of the Ninth Schedule, it would also greatly assist legislatures in effecting agrarian reform, without forcing Parliament to amend the Constitution every time a law is passed for this purpose.

CONCLUSIONIt would be expedient to summarise, at this stage, the conclusions arrived at in the course of this study. It has been noted that A. 31B and the Ninth Schedule were added to the Constitution specifically to put an end to the confusion surrounding the constitutional validity of agrarian reform legislation, in light of the decision in Kameshwar v. State of Bihar. The seemingly drastic

nature of the protection afforded by the Ninth Schedule led to several attacks upon its constitutionality, all of which proved unsuccessful. However there continued to be a conflict between the judiciary and the Central and State legislatures on issues pertaining to the agrarian reform programme, which resulted in a number of amendments to the Constitution. At the same time, the wording of A. 31B was given an incorrect and historically misplaced interpretation by the Court, in light of which the Ninth Schedule was blatantly misused by legislatures for the saving of several laws which had nothing to do with agrarian reform. This continues to be one of the central problems associated with the Ninth Schedule. In addition, the Court decisions after Kesavananda, as to the effect of the basic structure doctrine on A. 31B, were consistently ambiguous, and failed to clarify the precise grounds on which an addition to the Ninth Schedule could be struck down. This question also remains unanswered today. Finally, the effects of the 44th Amendment on the practical utility of the Ninth Schedule have also not been fully explored by the judiciary.

An attempt has been made in this paper to offer solutions to the problems presented above. As to the misuse of the Ninth Schedule, the submission is that it can be prevented if A. 31B is interpreted with due regard to its purpose, and also its language, both of which would serve to limit its openness to legislation of the kind enumerated in A. 31A exclusively. Apart from this, the argument has been that the confusion created by the opinion expressed in Waman Rao that laws already protected by A.s 31A or 31C need not be tested against the basic structure is based on a fallacious assumptions that no such law can violate a basic feature, and therefore must be discarded. It is submitted that no law sought to be included in the Ninth Schedule can be violative of the basic structure. Additionally, it is an implicit proposition, and, it is submitted, a correct one, in the majority judgment in Bhimsinghji that irrespective of whether or not a law violates the basic structure, it cannot be included in the Ninth Schedule unless the violation of the fundamental right for which protection is sought is necessary for the law’s purpose to be achieved. Therefore, correctly interpreted, the protection afforded by A. 31B is only of a limited kind. However, it has also been argued in this paper that this protection is not superfluous, despite the 44th Amendment which effected the removal of A. 31(1) from the scope of A. 31B, and the complete deletion of the right to property in A. 19(1)(f). This is because the right to property remains a facet of several other fundamental rights and it is perfectly possible that laws of the kind mentioned in A. 31A will violate these rights, in which case the protection of the Ninth Schedule will come into play. Further, the right in A. 300A, against which A. 31B offers no protection, has been interpreted restrictively, such that it is unlikely that it will be violated at all.

Finally, it was pointed out that since agrarian reform legislation is still a requirement for the country, A. 31B still has a role to play in enabling the survival of such legislation. However, a far more expedient solution to the problem A. 31B attempts to solve would be for the judiciary to interpret the fundamental rights along with the directive principles, in particular A.s 38 and 39(b) and (c), so as to establish that, even conceptually, agrarian reform laws do not violate any fundamental right. This would be a more direct and efficient way of doing what legislatures are now forced to do through the mechanism of A. 31B. Although this view seems to derive support from the decisions in Jilubhai and Waman Rao, there is still no clear ruling to this effect. If the judiciary does take this stance, then A. 31B may be safely repealed. But as long as this is not

done, the Ninth Schedule continues to have an important role to play in the constitutional scheme of the country.

BIBLIOGRAPHY

ARTICLES

1. A.R. Blackshield, “Fundamental Rights and the Economic Viability of the Indian Nation”, Vol. 10(1), Journal of the Indian Law Institute, 1968, 107.

2. D. Rajeev, “Impact of Maneka Decision”, Vol. 7, Cochin University Law Review, 1983, 393.

3. Dr. Subhash Chander Sharma, “Directive Principles of State Policy: Has the Time Come to make them Enforceable” Vol. 88, All India Reporter (Journal), 2001, 185.

4. G. Bikshapathi Reddy, “The Changing Facet of Directive Principles of State Policy and Fundamental Rights: The Role of Judicial Activism”, Vol.1, Supreme Court Journal, 1997, 56.

5. M.P. Singh, “The Statics and Dynamics of the Fundamental Rights and the Directive Principles: A Human Rights Perspective”, Vol. 5, Supreme Court Cases (Journal), 2003, 1.

6. Mohammmed Ghouse, “Agrarian Reforms v. Social Engineering”, Vol. 10(4), Indian Bar Review, 1983, 599.

7. N. Dharmadan, “Directive Principles: Manifestly non-justiciable but truly justiciable?”, Vol. 88 All India Reporter (Journal), 2001, 313.

8. P.Ishwara Bhatt, ‘Limits of the Ninth Schedule’s Openness”, Vol. 19, Cochin University Law Review, 1995, 232.

9. P.K. Tripathi, “Right to Property after Forty Fourth Amendment- Better Protected than Ever Before”, Vol. 67, All India Reporter (Journal), 49.

10.  T.K. Tope, “Forty Fourth Amendment and the Right to Property”, Vol. 4, Supreme Court Cases (Journal), 1979, 27.

BOOKS

1. D.D. Basu, Introduction to the Constitution of India, (Agra: Wadhwa and Company, 2002).

2. G. Austin, The Indian Constitution: Cornerstone of a Nation, (New Delhi: Oxford University Press, 1999).

3. H.M. Seervai, Constitutional Law of India, Vol. 1, (4th ed., Bombay: N.M. Tripathi Private Ltd., 1976).

4. M. Hidayatullah. Right to Property and the Indian Constitution, (New Delhi: Arnold Heinemann Publishers (India) Pvt. Ltd., 1983).

5. M.P. Jain, Indian Constitutional Law, (4th ed., Agra: Wadhwa and Company Law Publishers, 1994).

6. P.K. Agrawal, Land Reforms in India: Constitutional and Legal Approach, (New Delhi: M.D. Publications Pvt. Ltd.).

7. Sheeraz Latif Khan, Justice Bhagwati on Fundamental Rights and Directive Principles (Delhi: Deep & Deep Publishing, 1996).

8. T.K. Tope, Constitutional Law of India, (2nd ed., Lucknow: Eastern Book Co., 1992).9. V.N. Shukla, The Constitution of India, (9th ed., edited by M.P. Singh, Lucknow: Eastern

Book Company, 1998).

REPORTS

1. M.N. Venkatachaliaha et al, Report of the National Commission to Review the Working of the Constitution, Vol. 1, (Delhi: Universal Law Publishing Co. Pvt. Ltd., 2002).

MISCELLANEOUS

1. Constitution of India, 1950.

WEBSITES

1.http://www.epw.org.in/showArticlesphp?root=2002&leaf=11&filename=668&filetype=html, visited on 2/8/2003.

[1] See Mohammmed Ghouse, “Agrarian Reforms v. Social Engineering”, Vol. 10(4), Indian Bar Review, 1983, 599, at 600-603.

[2] D.D. Basu, Introduction to the Constitution of India, (Agra: Wadhwa and Company, 2002), 32.

[3] See generally G. Austin, The Indian Constitution: Cornerstone of a Nation, Oxford India Paperback edition, (New Delhi: Oxford University Press, 1999).

[4] AIR 1951 Pat 91.

[5] M. Hidayatullah. Right to Property and the Indian Constitution, (New Delhi: Arnold Heinemann Publishers (India) Pvt. Ltd., 1983), 148.

[6] See H.M. Seervai, Constitutional Law of India, Vol. 1 (4th ed., Bombay: N.M. Tripathi Private Ltd., 1976), A-175-A-177. In introducing the Bill in Parliament, Jawaharlal Nehru said, of the conflicting High Court decisions- “There is confusion and doubt. Are we to wait for this confusion and doubt gradually to resolve itself, while powerful agrarian movements grow up?”, cited from Waman Rao v. Union of India (1981) 2 SCC 362, at 386.

[7] Baldev Singh, “Ninth Schedule to Constitution of India: A Study”, Vol. 37(4), Journal of the Indian Law Institute, 457, at 464.

[8] M.P. Jain, Indian Constitutional Law, 4th ed. Rep., (Agra: Wadhwa and Company Law Publishers, 1994), 693-695.

[9] See T.K. Tope, Constitutional Law of India, (2nd ed., Lucknow: Eastern Book Co., 1992), 201-204.

[10] AIR 1951 SC 458.

[11] Entries 1 to 13 of the Ninth Schedule were inserted by the First Amendment Act.

[12] This was done in response to the judgment in State of West Bengal v. Mrs. Bela Bannerjee AIR 1954 SC 170, where the Court had held that compensation under A. 31(2) had to be a just equivalent of what the owner had been deprived of and that the Court could question the principles on the basis of which the amount had been determined, as well as the amount itself, should it prove to be inadequate.

[13] At this time, A. 19(1)(f), which provided the right to ‘hold, acquire and dispose’ of property to all citizens was still part of the Constitution. It was repealed subsequently by the 44th Amendment.

[14] AIR 1962 SC 723.

[15] AIR 1964 SC 1515.

[16] AIR 1965 SC 485.

[17] AIR 1967 SC 1463.

[18] See P. Vajravelu v. Spl. Dy. Collector AIR 1965 SC 1017; Union of India v. Metal Corporation AIR 1967 SC 637; R.C. Cooper v. Union of India (1970) 1 SCC 248. The effect of these decisions was to resurrect the definition of ‘compensation’ in Bela Bannerjee’s Case, which the 4th Amendment had sought to quash. See also V.N. Shukla, The Constitution of India, edited by M.P. Singh, (9th ed., Lucknow: Eastern Book Company, 1998), 246-248.

[19] AIR 1973 SC 1461.

[20] AIR 1975 SC 2299.

[21] (1981) 2 SCC 362.

[22] This decision gave rise to an anomaly, in that it was left unclear whether any law could be challenged on the grounds of violation of basic structure, or only those laws which were included in the Ninth Schedule by amendment. Subsequently, however, the position has been settled in Indra Sawhney (II) v. Union of India (2000)1 SCC 168, where it was held that the basic structure doctrine applied to all laws and executive orders, in addition to constitutional amendments.

[23] This is the situation after the deletion of Art. 31 by the 44th Amendment.

[24] (1981) 1 SCC 166.

[25] MANU/SC/1031/1999.

[26] See, for an account of Nehru’s views, P.Ishwara Bhatt, ‘Limits of the Ninth Schedule’s Openness”, Vol. , Cochin University Law Review, 1995, 232, at 242.  See also H.M. Seervai, Constitutional Law of India, Vol. 1 (4th ed., Bombay: N.M. Tripathi Private Ltd., 1976), A-175-A-177;

[27] See Entries 18, 19, 88, 90, 93, 94, 96, 97, 98, 99, 101, 102, 105, 131, 148.

[28] See Entries 91, 126, 127, 129, 148, 149.

[29] Entry 87 (Deleted by the 44th Amendment).

[30] Entry 130 (Deleted by the 44th Amendment).

[31] See Entry 257A.

[32] See Entries 103, 133, 149

[33] Dwarakadas Srinivas v. Sholapur Spinning and Weaving Co. AIR 1954 SC 119.

[34] P.K. Tripathi, “Right to Property after Forty Fourth Amendment- Better Protected than Ever Before”, AIR 1980 (J) 49.

[35] 1994-(SC2)-GJX -0622 –SC.

[36] Id.

[37] See P.K. Agrawal, Land Reforms in India: Constitutional and Legal Approach, (New Delhi: M.D. Publications Pvt. Ltd., 2993), 33-52, where it is argued that the scope of the right under A. 300A should be interpreted so as to limit it, to give effect to legislative intent.

[38] See T.K. Tope, “Forty Fourth Amendment and the Right to Property”, Vol. 4, Supreme Court Cases (Journal), 1979, 27, at 33-35; D. Rajeev, “Impact of Maneka Decision”, Vol. 7, Cochin University Law Review, 1983, 393.

[39] MANU/SC/0248/1964.

[40] Id.

[41] Id.

[42] Id.

[43] MANU/SC/0075/1980.

[44] Id.

[45] See A.R. Blackshield, “Fundamental Rights and the Economic Viability of the Indian Nation”, Vol. 10(1), Journal of the Indian Law Institute, 1968, 107, for another argument to the effect that A. 31B, by virtue of its opening phrase, is a particularization of A. 31A.

[46] M.N. Venkatachaliaha et al, Report of the National Commission to Review the Working of the Constitution, Vol. 1, (Delhi: Universal Law Publishing Co. Pvt. Ltd., 2002), 64-65.

[47] Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299; C. Masilamani Mudaliar v. The Idol of Sri Swaminathaswami Swaminathaswami Thirukoli MANU/SC/0441/1996; Samatha v. State of Andhra Pradesh MANU/SC/0832/1997; Kanhaiyalal Sethia v. Union of India MANU/SC/1250/1997; Raghunath Rao v. Union of India AIR 1993 SC 1267.

[48] See Tim Hanstad, Jennifer Brown and Roy Prosterman, “Larger Homestead Plots as Land Reform?”, at http://www.epw.org.in/showArticles-php?root=2002&leaf=11&filename=668&filetype=html, visited on 2/8/2003.

[49] Kripa Shankar, “Tenancy Reforms: Rhetoric and Reality, Vol. 34(46), Economic and Political Weekly, 1999, 3264.

[50] (1973) 4 SCC 225.

[51] See Srinivasa v. State of Karnataka AIR 1987 SC 1518; State of Tamil Nadu v. Abu AIR 1984 SC 326; Sanjeev Coke v. Bharat Coking Coal AIR 1983 SC 239.

[52] Supra note 22.

[53] Dalmia Cement (Bharat Ltd.) v. Union of India MANU/SC/1585/1996; State of Bihar v. Kameshwar MANU/SC/0019/1952; Consumer Education and Research Centre v. Union of India MANU/SC/0175/1995; Tara Chand v. Chairman & Disciplinary Authority MANU/SC/1161/1997; Tatoba Bhau v. Vasantraj Deshpande MANU/SC/0612/2001.

[54] (1980) 3 SCC 625.

[55] See Grih Kalyan Kendra v. Union of India AIR 1991 SC 1173; Chandra Bhavan v. State of Mysore AIR 1970 SC 2024; PWD Literate Daily Wages Employees Association v. State of Karnataka AIR 1990 SC 883. See also N. Dharmadan, “Directive Principles: Manifestly non-justiciable but truly justiciable?”, Vol. 88 All India Reporter (Journal), 2001, 313 ; Dr. Subhash Chander Sharma, “Directive Principles of State Policy: Has the Time Come to make them Enforceable” Vol. 88, All India Reporter (Journal), 2001, 185; M.P. Singh, “The Statics and Dynamics of the Fundamental Rights and the Directive Principles: A Human Rights

Perspective”, Vol. 5, Supreme Court Cases (Journal), 2003, 1; G. Bikshapathi Reddy, “The Changing Facet of Directive Principles of  State Policy and Fundamental Rights: The Role of Judicial Activism”, Vol.1, Supreme Court Journal, 1997, 56; Sheeraz Latif Khan, Justice Bhagwati on Fundamental Rights and Directive Principles (Delhi: Deep & Deep Publishing, 1996).

[56] See State of Madras v. Champakam Dorairajan AIR 1951 SC 226.

[57] See Waman Rao v. Union of India (1981) 2 SCC 362, at 386.

[58] Waman Rao v. Union of India (1981) 2 SCC 362, at 389.