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Parliamentary turf cut further : Apex court expands basic structure of the Constitution

	January 15, 2007

Cutting deeper into the powers of Parliament, the Supreme Court held last week that there could not be any blanket immunity from judicial review for laws inserted in the Ninth Schedule of the Constitution.



A nine-judge bench of the apex court headed by outgoing Chief Justice of India Y.K. Sabharwal said in a verdict delivered on Thursday, Jan. 11, that laws put in the Ninth Schedule after April 1973 cannot escape judicial scrutiny if they appear to breach fundamental rights of the citizens or to undermine the basic structure of the Constitution.



Over the years, a large number of laws have been put in the Ninth Schedule with the objective of putting them beyond judicial review. The Ninth Schedule (Art. 31-B) was introduced by the country’s first Prime Minister Jawaharlal Nehru to keep certain laws, particularly those on land reforms, beyond the scope of judicial review. In the period since then, 284 laws have been included in the Ninth Schedule and about 30 of them are at present under challenge in the Supreme Court.



In its unanimous verdict, the Bench, while recognising the supremacy of the court to examine the validity of inclusion of a law in the Ninth Schedule, did not accept the argument that introduction of Article 31-B was just a one-time measure to protect agrarian laws after the abolition of the zamindari system and that it outlived its purpose.



“The power to grant absolute immunity at will is not compatible with the basic structure doctrine and, therefore, after April 24, 1973, the laws included in the Ninth Schedule would not have absolute immunity. The validity of such laws can be challenged on the touchstone of basic structure such as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles underlying these Articles.”



The Bench said, the supremacy of the Constitution mandates all constitutional bodies to comply with the provisions of the Constitution. It also mandates a mechanism for testing the validity of legislative acts through an independent organ, viz. the judiciary.



The Bench held that all such laws included in the Ninth Schedule after April 24, 1973 would be tested individually on the touchstone of violation of fundamental rights or the basic structure doctrine. The laws would be examined separately by a three-judge Bench and if these were found to violate the fundamental rights, abridge or abrogate any of the rights or protection granted to the people, would be set aside.



The apex court held that the power of Parliament to make any law at will and put it in the protective umbrella of Ninth Schedule will transgress fundamental rights in their entirety and will be incompatible with the basic structure doctrine of the Constitution.



“The object of the fundamental rights is to foster social revolution by creating a society egalitarian to the extent that all citizens will be equally free from coercion or restriction by the state. Fundamental rights and Directive Principles had to be balanced. That balance can be tilted in favour of the public good. The balance, however, cannot be overturned by completely overriding individual liberty. This balance is an essential feature of the Constitution.”



Writing the judgement for the Bench, Justice Sabharwal said, “The framers of the Constitution have built a wall around certain parts of fundamental rights, which have to remain for ever, limiting the ability of the majority to intrude upon them. That wall is the Basic Structure doctrine.”



The Bench said, “The unchecked and rampant exercise of this power [to include laws in the Ninth Schedule], the number having gone up from 13 to 284, shows that it is no longer a mere exception. The absence of guidelines for exercise of such power means the absence of constitutional control which results in the destruction of constitutional supremacy and creation of a parliamentary hegemony and absence of full power of judicial review to determine the constitutionality of such exercise.”



It said, “Parliament has power to amend the provisions of Part III of the Constitution so as to abridge or take away fundamental rights, but that power is subject to the limitation of the Basic Structure doctrine.”



Rejecting the contention that Parliament had unlimited power to enact any law and put it in the Ninth Schedule, the Bench said, “Article 31-B cannot be used so as to confer unlimited power. Article 31-B cannot go beyond the limited amending power contained in Article 368 (power to amend the Constitution).”



The court reminded the Government that equality, rule of law, judicial review and separation of powers formed part of the Basic Structure. “There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to judicial review.”



The Bench said, “The doctrine of Basic Structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Article 14 and 19 which constitute core values which if allowed to be abrogated would change completely the nature of the Constitution.”







Uncertain future of laws on reservation



Observers say that with the latest Supreme Court judgement, there will be a question mark on the validity of laws providing for reservation for other backward classes in government-run educational institutions which is already under challenge. The court has also issued notice to the government on a petition challenging reservation in all kinds of government jobs, educational institutions and Parliament and State Assemblies. The Tamil Nadu Reservation Act, which provides for 69 per cent reservation for the schedule castes, scheduled tribes and backward classes, is one of the major cases which will have to be decided by the three-judge Bench of the Supreme Court when it is set up. The Narasimha Rao Government had put the Tamil Nadu legislation in the Ninth Schedule in 1994 after the State Assembly passed a resolution demanding that. Successive Tamil Nadu governments have argued that since the scheduled castes and backward classes etc. constitute nearly 80 per cent of the population, the 69 per cent quota was justified.



Political parties in Tamil Nadu, including the ruling DMK and the PMK, have expressed concern at the apex court judgement. Jayalalithaa’s All India Anna DMK has expressed shock at the verdict.



The CPI has said that the Supreme Court verdict may have serious and unforeseen implications and the judgement requires further debate in all circles. Ramvilas Paswan’s Lok Janshakti Party has said that the Government should press for a review of the judgement by a bigger 13-member Bench.



While Law Minister H.R. Bhardwaj was of the view that the judgement will not have any adverse impact on the functioning of the executive, the Congress was cautious in its reaction. Bhardwaj said the verdict only means that if something happened against the basic features of the Constitution or the fundamental rights, the Supreme Court can strike it down. Congress spokesperson said that the judgement reflected the expanded frontier of judicial review and reiterated the established wisdom that the basic structure of the constitution is supreme.







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What is the Ninth Schedule ?



The Ninth Schedule was drafted by the Nehru Government in 1951. It is a Constitutional provision granting Parliament the power to insulate any law from judicial review. The provision came into sharp focus as the political class tended to use it for all kinds of things - the latest proposal was to use it to nullify sealings in Delhi.



The very first Constitution amendment enacted in 1951 introduced the Ninth Schedule through Art. 31B. According to this provision drafted by the Nehru Government, none of the laws specified in this schedule shall be deemed to be void, or ever to have become void, on the ground that it was inconsistent with any of the fundamental rights, notwithstanding any judgement, decree or order of any court or tribunal to the contrary.



The real trigger for the debate on the provision was in the context of job reservations. The demand of political parties was to put all reservation-related laws in the Ninth Schedule in a bid to put them beyond judicial review.



The schedule was not envisaged by the founding fathers at all. In fact, it owes its birth to ideological battles in the nascent republic between the progressive executive and legislature on the one hand and the conservative judiciary on the other.



Given its potential, successive governments have conferred the Ninth Schedule protection on a variety of laws, often chosen on consideration of political expediency. The number of laws in the Schedule has in the process jumped to 284. These include laws like FERA, COFEPOSA, MRTPC Act, Nationalization Acts and Essential Commodities Act.