SALIENT FEATURES OF THE 78TH AMENDMENT OF THE INDIAN CONSTITUTION

Introduction

The constitution contains the rights and duties of citizens along with the set of rules and regulations defining the relationship between the state and the citizens, the duties and powers of the state, and its instrumentalities. The constitution of India is adopted on the 26th of November 1949 and on the 26th of January 1950 it came into force. The constitution of a country is often called the supreme law as it forms the basis and is the origin of all the other laws. The constitution may be written or unwritten. Indian constitution is a written constitution. It is the lengthiest written constitution in the world. No law can be made in contravention of the constitution. The constitution defines the powers of the legislature to make laws. The legislature can make the laws only to the extent that is allowed to do so by the constitution. The constitution can be of two kinds. It can be rigid or flexible. But our Indian constitution is both rigid and flexible.

Our Indian constitution is both rigid and flexible. Society is not static, it’s dynamic. There is a need to change the law with the changing society because what was a crime in past may not be the same in the future. Amendments play important role in nation-building. An amendment is a process of altering or amending a law or a document such as a constitution by the parliamentary or constitutional procedure. An ‘Amendment’ is a formal alteration to a statute, contract, constitution, or another legally binding instrument. Essentially, the goal of any change is to make things better. The modification could be an update, with elements of these agreements being added or removed. Only the legislative branch has the authority to make adjustments and participate in the amendment process.

78th amendment of the Constitution

78th amendment of the constitution is about the inclusion of land laws of certain states in the ninth schedule of the Indian constitution in order to escape from being sued in the court of law. The laws which are mentioned in the ninth schedule of the constitution cannot be challenged before the court.

Ninth schedule 

The ninth schedule includes the state and central laws which cannot be challenged before the court. It was added by the constitution (1st amendment ) act 1951. Initially, the first amendment added 13 laws that cannot be challenged before a court of law even though they violate the fundamental rights of the citizens. Later by subsequent amendments, 284 laws are added in the ninth schedule of the Indian constitution which cannot be challenged.

 By the 1st Constitutional Amendment of 1951, the Parliament added Article 31a to the Indian Constitution. According to this, the government can acquire the property of the people and by doing so, the fundamental rights mentioned in Articles 14 and 19 of the Indian Constitution shall not be violated.

 Article 31B. 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, 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.

Article 31B is the result of the 1st amendment of the Indian constitution,1951 regarding the ninth schedule of the constitution. Article 31 b is a wider extent of article 31a. in article 31a we may observe that the government can acquire the property of the people and by doing so if the fundamental rights are violated they are not considered a violation. Article 31b of the Indian Constitution states that the provisions mentioned in Article 31a are immune from the Indian judiciary and cannot be nulled on the basis that they might violate the fundamental rights mentioned in Articles 14, 19, and 31 of the Indian Constitution. This was challenged in the Waman Rao case.

Waman Rao vs union of India 

Waman Rao vs union of India is a case of 1981 in which the Supreme Court scrutinized the validity of Article 31a and Article 31b of the Constitution of India concerning the doctrine of basic structure which was introduced under the Kesavananda Bharati case,1973.

 Article 31B read with the Ninth Schedule states that all the Acts falling within the ambit of the ninth schedule cannot be termed as void for violating the Fundamental Rights enshrined under part III of the Constitution. The law states that when any Act or regulation is placed under Ninth Schedule, then, it would automatically receive protection of Article 31B from being termed as void for abridging the Fundamental Rights of the citizens. Therefore, the petitioners contended that Article 31B is inconsistent with the Fundamental Rights. Fundamental Rights include the right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies.

The doctrine of basic structure is about the powers of the parliament to amend the constitution. According to article 368 of the constitution, parliament has the limitless power to amend the constitution but not the basic structure. The aspects which are included in the basic structure are not exhaustive. It is the judiciary that has the obligation to decide what aspects come under the basic structure of the constitution. Fundamental rights, parliamentary, democracy, and secularism are some aspects that are part of the basic structure of the constitution. The Court made an important observation regarding the applicability of the doctrine and held that the same should not have a retrospective effect. Retrospective effect means all the decisions made before the introduction of the doctrine of basic structure in the Kesavananda Bharati case shall remain valid. The direct effect of the decision implied that all the acts and regulations that were included under the Ninth Schedule of the Constitution before the Kesavananda Bharati vs State of Kerala decision shall remain valid while the further amendments to the schedule can be challenged on the grounds of violation of the doctrine of the basic structure. 

Thus, the court held that all the laws included in the Ninth Schedule before the Kesavananda case would receive the protection of Article 31B. However, the Acts and Regulations inserted in the Ninth Schedule post the Kesavananda judgment, would not be protected under Article 31B and would be open to scrutiny on the grounds of violating the basic structure of the Constitution. 

Statement of objects and reasons

Article 31 b of the constitution confers on the enactments included in the ninth schedule to the constitution immunity from legal challenge on the ground that they violate the fundamental right enshrined in part 3 of the constitution. The schedule consists of a list of laws enacted by various state governments and central governments which inter alia affect rights and interest in the property including land.

In the past whenever it was found that progressive legislation conceived in the interest of the public was imperiled by litigation, recourse was taken to the ninth schedule. Accordingly, several state enactments relating to land reforms and ceilings on agricultural land holdings have already been included in the ninth schedule. Since the government is committed to giving importance to land reforms, it has certainly decided to include land reform laws in the ninth schedule so that they are not challenged before the courts. The state governments of Bihar, Karnataka, Kerala, Orissa, Rajasthan, Tamil Nadu, and West Bengal have suggested the inclusion of some of their acts relating to land reforms in the ninth schedule.

Since the amendment to acts that are already placed in the ninth schedule are not automatically immunized from legal challenge several amending acts along with a few principal acts are also proposed to be included in the ninth schedule to ensure that implementation of these acts is not adversely, affected by litigation

An Act further amended the Constitution of India

Be it enacted by Parliament in the Forty-sixth Year of the Republic of India as follows:-

1. Short title.-This Act may be called the Constitution (Seventy-eighth Amendment) Act, 1995.

2. Amendment of the Ninth Schedule.-In the Ninth Schedule to the Constitution, after entry 257-A and before the Explanation, the following entries shall be inserted, namely:-

“258. The Bihar Privileged Persons Homestead Tenancy Act, 1947 (Bihar Act 4 of 1948).

259. The Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act 22 of 1956).

260. The Bihar Consolidation of Holdings and Prevention of Fragmentation (Amendment) Act, 1970 (Bihar Act 7 of 1970).

261. The Bihar Privileged Persons Homestead Tenancy (Amendment) Act, 1970 (Bihar Act 9 of 1970).

262. The Bihar Consolidation of Holdings and Prevention of Fragmentation (Amendment) Act, 1973 (Bihar Act 27 of 1975).

263. The Bihar Consolidation of Holdings and Prevention of Fragmentation (Amendment) Act, 1981 (Bihar Act 35 of 1982).

264. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1987 (Bihar Act 21 of 1987).

265. The Bihar Privileged Persons Homestead Tenancy (Amendment) Act, 1989 (Bihar Act 11 of 1989).

266. The Bihar Land Reforms (Amendment) Act, 1989 (Bihar Act 11 of 1990).

267. The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) (Amendment) Act, 1984 (Karnataka Act 3 of 1984).

268. The Kerala Land Reforms (Amendment) Act, 1989 (Kerala Act 16 of 1989).

269. The Kerala Land Reforms (Second Amendment) Act, 1989 (Kerala Act 2 of 1990).

270. The Orissa Land Reforms (Amendment) Act, 1989 (Orissa Act 9 of 1990).

271. The Rajasthan Tenancy (Amendment) Act, 1979 (Rajasthan Act 16 of 1979).

272. The Rajasthan Colonisation (Amendment) Act, 1987 (Rajasthan Act 2 of 1987).

273. The Rajasthan Colonisation (Amendment) Act, 1989 (Rajasthan Act 12 of 1989).

274. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment Act, 1983 (Tamil Nadu Act 3 of 1984).

275. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment Act, 1986 (Tamil Nadu Act 57 of 1986).

276. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1987 (Tamil Nadu Act 4 of 1988).

277. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) (Amendment) Act, 1989 (Tamil Nadu Act 30 of 1989).

278. The West Bengal Land Reforms (Amendment) Act, 1981 (West Bengal Act 50 of 1981).

279. The West Bengal Land Reforms (Amendment) Act, 1986 (West Bengal Act 5 of 1986).

280. The West Bengal Land Reforms (Second Amendment) Act, 1986 (West Bengal Act 19 of 1986).

281. The West Bengal Land Reforms (Third Amendment) Act, 1986 (West Bengal Act 35 of 1986).

282. The West Bengal Land Reforms (Amendment) Act, 1989 (West Bengal Act 23 of 1989).

283. The West Bengal Land Reforms (Amendment) Act, 1990 (West Bengal Act 24 of 1990).

284. The West Bengal Land Reforms Tribunal Act, 1991 (West Bengal Act 12 of 1991).”

Conclusion

From the above information we may conclude that the seventy eighth amendment of the constitution is about inclusion of land reform laws of Bihar, Karnataka, Kerala, Orissa, Rajasthan, Tamil Nadu, and West Bengal. Law need to be amended from time to time by removing the outdated provisions which are inadequate and adding the new provisions in response to new needs in the society. Hence amendments are important, but the amendment should improve the standard and living of people and peace in society not for demolishing the existing system.

References

  1. https://www.brainyias.com/article-31-a31b-and-31c/
  2. https://blog.ipleaders.in/waman-rao-case-analysis-and-importance/
  3. https://www.drishtiias.com/daily-updates/daily-news-analysis/inclusion-of-reservation-laws-in-ninth-schedule
  4. https://www.casemine.com/act/in/5a979daa4a93263ca60b7213

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