Saving clauses: the Ninth Schedule and Articles 31A-C

Research output: Chapter in Book/Report/Conference proceedingChapterpeer-review

Abstract

This chapter examines the drafting history, nature, scope, (mis)use, and relevance of the so-called ‘saving clauses’ of the Indian Constitution: Article 31A, Article 31B read with the Ninth Schedule, and Article 31C. They are designed to protect laws aimed at agrarian reforms or at implementing certain Directive Principles of State Policy (DPSPs) from a potential constitutional challenge on the ground of violating fundamental rights (FRs), and exceptionally allow certain laws to override FRs. This chapter offers an alternative reading of the saving clauses and discusses the Ninth Schedule, arguing that, despite being misused in the past, it might not be abused in the future, and that the Basic Structure doctrine is inappropriate to test the validity of laws inserted in the Ninth Schedule. It also suggests that the judiciary misconstrued their role with respect to the right to property as a FR, as well as the value of DPSPs relative to FRs.
Original languageEnglish
Title of host publicationThe Oxford handbook of the Indian constitution
EditorsSujit Choudhry, Madhav Khosla, Pratap Bhanu Mehta
Place of PublicationOxford, UK
PublisherOxford University Press
Pages627-643
Number of pages17
ISBN (Electronic)9780191058622
ISBN (Print)9780198704898
Publication statusPublished - 2016
Externally publishedYes

Keywords

  • agrarian reforms
  • Basic Structure doctrine
  • Directive Principle
  • fundamental rights
  • Indian Constitution
  • judiciary
  • Ninth Schedule
  • right to property
  • saving clauses

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