Five laws that Indira Gandhi wanted to be out of legal scrutiny
2 min read 17 Jun 2015, 12:31 PM ISTAs many as 47 laws were sent to the Ninth Schedule of the Constitution during the Emergency in 1975
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Did you know that as many as 47 laws were sent to the “Ninth Schedule" of the Constitution during the Emergency in 1975?
What is the Ninth Schedule, you ask?
Any law passed by Parliament is open to Supreme Court scrutiny, unless it is left unchallenged or it goes into the Ninth Schedule, which is like a safety net to which governments have often thrown laws to keep them away from the Supreme Court’s grasp.
The apex court has consistently performed the job of the enforcer by striking down laws which it thought fall foul of the Constitution.
The judiciary’s tussle with the executive has been long and protracted, whether it be on the power to amend the Constitution or the more recent judicial appointments.
Introduced in 1951 by the first amendment to the Constitution, Article 31B of the Constitution said that laws included under the Ninth Schedule cannot be struck down by a court on grounds of violating fundamental rights.
In 2007, however, in a nine-judge ruling, the Supreme Court laid down that laws inserted to the Ninth Schedule by way of constitutional amendments would be open to the apex court’s scrutiny if they affected the basic structure of the Constitution or eroded fundamental rights.
The Emergency, however, was a different time. Here is a list of the five laws that the Indira Gandhi regime decided to throw into that safety net, away from the apex court’s prying eye.
The Representation of the People Act, 1951: This law provides for the conduct of elections for both houses of Parliament and the state legislatures. Indira Gandhi’s election was challenged due to violation of this law and after certain amendments to tweak the law, it promptly found its way to the Ninth Schedule.
Maintenance of Internal Security Act, 1971 (MISA): The law was brought in to quell civil and political disruptions in the country and to counter national threats. It was heavily criticized for its disregard for civil rights. Under MISA, law enforcement agencies were given special powers to arrest without warrants and preventive detention was allowed. In fact, several opposition leaders were jailed under this law. The Act was amended many times during the Emergency. To ensure that it went unchallenged in courts, MISA was duly inserted in the Ninth schedule.
Monopolies and Restrictive Trade Practices Act, 1969: The anti-trust law, a grim reminder of the licence-permit era of India, was quickly dumped in the Ninth Schedule. The law was replaced by The Competition Act, 2001.
Foreign Exchange Regulation Act, 1973 (Fera): Fera imposed strict regulations on payments, dealings in foreign exchange and securities and transactions which had an indirect impact on foreign exchange and the import and export of currency. The law was criticized for being a hurdle to foreign investments, and was put in the Ninth Schedule basket immediately to avoid legal scrutiny. Fera has now been replaced by the Foreign Exchange Management Act, 1999.
The Coal Mines (Nationalization) Act, 1973: The Emergency period saw the launch of a host of nationalization schemes. From general insurance, banking, textile industries to coal mines, the government policy on nationalization was challenged in courts. From the government’s point of view, nationalization was done in the socialistic spirit of the Constitution. To avoid legal issues, the law was inserted in The Ninth Schedule.
