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Ninth Schedule laws beyond judicial review : Centre

	October 23, 2006

In a related case, which may have a bearing on the national capital developments, the Centre has told the Supreme court of its view that a law declared unconstitutional for violating Fundamental Rights gets ‘cured’ of its defects when placed in the Ninth Schedule of the Constitution.



The Centre has stated this in its affidavit filed in the Supreme Court, which is to have a fresh look at the scope and powers of Parliament to include a law in the Ninth Schedule even after it is struck down. The court will examine the validity of the inclusion of the Tamil Nadu Reservation Act and several other State and Central legislation in the Ninth Schedule.



A nine-judge Constitution Bench will hear from October 30 whether an earlier five-judge Bench decision that “all Constitution amendments by which additions were made to the Ninth Schedule on or after April 24, 1973 [when judgment in the Keshavanand Bharti case was delivered] will be valid only if they do not damage or destroy the basic structure of the Constitution is correct or not.”



The hearing is a sequel to a reference made in 1999 by the five-judge Bench. The grounds on which the matter was referred to nine judges are: “judicial review is a basic feature of the Constitution; to insert into the Ninth Schedule an Act which, or part of which, has been struck down as unconstitutional in exercise of the power of judicial review is to destroy the basic structure of the Constitution; to insert into the Ninth Schedule after April 24, 1973, an Act, which, or part of which, has been struck down as being violative of the fundamental rights conferred under the Constitution is to destroy or damage its basic structure.”



Claiming that no further examination of the issue was necessary, the Centre said that the object of introducing Article 31 B was to achieve the constitutional objectives of social equality. “ A Legislature must have the power to bring about broader social equality even if it be at the expense of particular individual freedoms.”



The Centre asserted that Parliament had the power to include in the Ninth Schedule a law which was struck down on the ground of violation of fundamental rights. For, the moment it was included in the Ninth Schedule it would be cured of the vice/defect and no challenge would be available to such statute. “If a law is included in the Ninth Schedule the challenge to it has to fail.”



The affidavit said: “A Constitution amendment which incorporates a [piece of] legislation in the Ninth Schedule has to be tested on the ground whether it violates the basic structure of the Constitution. If it violates the basic structure then such an amendment would be ultra vires the powers provided by Article 368 [power of Parliament to amend the Constitution] and therefore invalid and the protection provided under Article 31 B would not be available.”





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Bill for mechanism to probe judges ready



The Government is reported to have given final touches to the Judges (Inquiry) Bill, which is likely to be introduced in the Winter Session of Parliament after it is cleared by the Union Cabinet. The Bill provides for the setting up of a National Judicial Council to inquire into acts of ‘misbehavior’ and ‘incapacity’ of judges of the Supreme Court and High Courts.



There are reports that Chief Justice of India Y.K. Sabharwal who had earlier expressed reservations on the proposed legislation has now approved the Bill after the Government incorporated in clauses suggested by him. The modifications suggested by the CJI are reported to be as follows :



* In the case of an inquiry against a Supreme Court Judge, no High Court judges will form pat of the Council.



* The Council will not have powers to hold an inquiry against retired judges.



* In case the inquiry is against a Member of the National Judicial Council, he will be excluded from the proceedings.



The Judges (Inquiry) Bill will replace the existing Judges (Inquiry) Act, 1968 and makes significant departures from it. A similar Bill introduced in Parliament by the NDA government had lapsed in 2003, following which the UPA Government made a new draft.



The draft Judges (Inquiry) Bill incorporates a majority of the Law Commission’s recommendations.



The National Judicial Council will not have powers to impeach judges, which remains reserved for Parliament and the President.



The composition of the Council in the case of an inquiry into allegations against High Court judges will be the Chief Justice, two senior most judges of the Supreme Court and two Chief Justices of High Courts nominated by CJI.



In the case of an inquiry against a Supreme Court judge, the Council will comprise the CJI and four senior-most judges of the Supreme Court.















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Justice delayed, not denied : Priyadarshini’s murderer convicted



In a landmark decision, Delhi High Court on October 17 overturned the trial court’s 1999 decision to acquit Santosh Kumar Singh, who had been accused of raping and murdering his fellow student of Delhi University, Priyadarshini Mattoo. The High Court convicted him of both the crimes with which he had been charged, rape and murder. The court is expected to pronounce judgment on the quantum of sentence,likely to be either life imprisonment, or death sentence, on October 30.



The High Court verdict came on an appeal by the Central Bureau of Investigation challenging the acquittal of the accused by the trial court. Priyadarshini Mattoo, a young law student at the Campus Law Centre of Delhi University, was raped and strangulated to death on the evening of January 23, 1996, at her Vasant Kunj residence in South Delhi.



Quashing the acquittal of the accused by the trial court, the High Court in its 71-page judgment observed,”The trial judge acquitted the accused amazingly taking a perverse approach. It murdered justice and shocked judicial conscience.”



The lower court had acquitted Singh on the ground that the CBI failed to provide its case beyond reasonable doubt.



“Finally justice has been delivered,” said Priyadarshini Mattoo’s 71 year old father, Chaman Lal Mattoo, currently staying in Himachal Pradesh. It was he who led a single-handed campaign with the help of friends and media.



“I cannot express myself. I have no words to express how I feel. Justice has been done. Common people in the country can now breathe with ease. This is a step in the right direction,” he added. For Priyadarshini’s brother, Hemant, who lives in New York, it was hope regained in the Indian judicial system.



Another person whose hopes rekindled after the judgement is Jessica Lall’s younger sister, Sabrina. She said, “I know what exactly it feels after you get justice after years of struggle. I am very happy for the Mattoo family and now hope that justice will also be delivered in Jessica case very soon.”



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Foreign Minister search continues



Despite Prime Minister Manmohan Singh saying a number of times in the last few months that the country is very soon going to have an External Affairs Minister, the much awaited exercise has not come to a conclusion so far. The last time the Prime Minister had made the announcement was on October 14, but till October 20, there was no inkling when the addition to the Union Cabinet is going to be made. Among those whose names are being mentioned as potential incumbents of the Foreign Office are Defence Minister Pranab Mukherjee, veteran Congress leader, Dr. Karan Singh and Commerce Minister Kamal Nath. The Prime Minister has been holding additional charge of the Ministry for a year now after K Natwar Singh was dropped following his indictment in the Iraqi oil for food scam.



Simultaneously, the race for the next President has started picking up. Names of possible candidates like Vice President Bhairon Singh Shekhawat, Lok Sabha Speaker Somnath Chatterjee and Dr. Karan Singh are being discussed in political circles in this connection. Moves in this direction are expected to gain further momentum after the results of the Assembly elections in Uttar Pradesh, Uttarakhand, Punjab and Manipur which will have an impact on the electoral college which elects the President.