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Part VI Rights—Structure and Scope, Ch.35 Saving Clauses: the Ninth Schedule and Articles 31A–C

Surya Deva

From: The Oxford Handbook of the Indian Constitution

Edited By: Sujit Choudhry, Madhav Khosla, Pratap Bhanu Mehta

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 27 September 2020

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), andexceptionally 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.

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