In 1975, when prime minister Indira Gandhi imposed Emergency, several laws under the Ninth Schedule of the Constitution were shielded from judicial review.
Before 2007, the Supreme Court did not have the power to interfere with these laws. It was not until 10 years ago that the top court passed a judgment which allowed it to strike down any law under the Ninth Schedule, subject to the violation of the fundamental rights or the basic structure of the Constitution.
What is the Ninth Schedule?
The Constitution of India is said to be the lengthiest legal document with 448 articles divided into 25 parts and 12 schedules. When drafted in 1951, the Constitution originally had 395 articles and eight schedules. It has undergone several changes down the years through the introduction of amendments.
Schedules are lists in the Constitution which tabulate bureaucratic activity and policy of the government like the privileges and emoluments of the President, governors, members of parliament and judges.
The ninth schedule was introduced by the first amendment of the Constitution in 1951. The said schedule states laws dealing with land reforms and the abolition of zamindari system. The law was specifically kept away from the reach of the top court to preserve the fundamental rights of the people.
But before the 2007 judgment, the Ninth Schedule provided a protective shield to laws from the courts, especially during the Emergency.
What were the laws that were secured by Indira Gandhi under the Ninth Schedule during the Emergency?
1. The Representation of the People Act, 1951: The Act regulates the manner in which elections are held in both houses of the Parliament and state legislatures. Indira Gandhi’s election was challenged in the Allahabad High Court in 1975. The court had held Gandhi guilty of electoral malpractices and disqualified her from holding an electoral post. The law was slipped into the Ninth Schedule.
2. Monopolies and Restrictive Trade Practices Act, 1969 (MRTP): The objective of the Act was to restrict monopolistic trade activities and to maintain the economy of the country in balance. In short, the law was to make sure that the wealth of the country does not remain concentrated in the hands of the rich.
The law has now been replaced by the Competition Act, 2002.
3. Maintenance of Internal Security Act, 1971 (MISA): A controversial law which gave the then Prime Minister Indira Gandhi and law enforcement gave absolute power to search and seize properties without a warrant, put individuals under preventive detention and use wiretapping.
With the stated aim of “maintaining law and order” in the country, the law was passed in 1971 to curb threats to national safety. The Act was struck down in 1977 when Indira Gandhi lost the Indian General Election.
4. Foreign Exchange Regulation Act, 1973 (FERA): What is now popularly known as FEMA, the Foreign Exchange Management Act, 1999 was called FERA back in 1973. The Act aimed to regulate foreign payments and investments and the conversion of foreign exchange.
5. The Coal Mines (Nationalization) Act, 1973: Acquisition, transfer of right, title and interest of the owners of coal mines was covered under the law. Many such laws were introduced before Emergency and this was protected under the Ninth Schedule.