Thursday, 28 June, 2007

Legal Spaces!

The IXth Schedule: Intro

New Delhi, January 11: In a unanimous verdict, a nine-judge Constitution Bench headed by Chief Justice Y K Sabharwal held that legislations did not get protection of the Ninth Schedule, if they were violating the basic structure of the Constitution.

Ninth schedule open to challenge: SC Laws placed under Ninth Schedule after April 24, 1973 shall be open to challenge in court if they violated fundamental rights guaranteed under Article 14, 19, 20and 21 of the Constitution, the bench said.

If laws put in the Ninth Schedule abridge or abrogate fundamental rights resulting into violation of the basic structure of the Constitution, such laws have to be invalidated, it said.

SC's words are not always right but final: CJI Parliament, henceforth, would not be allowed to insert laws struck down or declared invalid or unconstitutional by the apex court in the Ninth Schedule. The Ninth Schedule was created by an amendment in 1951by former Prime Minister Jawaharlal Nehru to push land reforms.

Initially, there were only 13 laws in the Ninth Schedule, but now there are around 284 laws in it, including the controversial 69 per cent reservation law of Tamil Nadu, which violates the apex court's 50per cent ceiling on quotas. If laws put in the Ninth Schedule abridge or abrogate fundamental rights resulting into violation of the basic structure of the Constitution, such laws have to be invalidated, it said.

This judgment will have a big impact on the creamy layer issue and other policies made by the government with disregard to the constitution. Prior to this, the govt. could get away with such laws by simple putting it in the ninth schedule. Not any more. And the good thing is, it is covers all laws placed in the ninth schedule after April 24, 1973 (Keshavananda Bharati vs. the State of Kerala).

The IXth Schedule: Problem

In perhaps it’s most significant decision since the Keshvanand Bharti case, the Supreme Court has ruled that laws placed under the ninth schedule of the Constitution are open to judicial scrutiny. It has proposed a two step test for judging the constitutional validity of any law a) It should not abrogate the fundamental rights of the citizens b) It should not violate the basic structure doctrine as defined in the Keshvanand Bharti case.The ninth schedule was inserted in the constitution via the first amendment expressly to advance the cause of land reforms necessitated by the abolition of zamindari system.

With the passage of time, and especially after the Keshvanand Bharti case, it became a convenient tool in the hands of the government to place all inconvenient laws beyond the scrutiny of the court. According to the constitution, the Court is final interpreter of laws and it is clearly perverse not to allow it to discharge its constitutional role.The judgment is most interesting in the light of the OBC reservation bill currently facing Court’s scrutiny. The Court has already asked some uncomfortable questions especially about the reasons for not excluding the creamy layer. Another important piece of legislation is Tamil Nadu’s government decision to grant 69% reservation against the Supreme Court imposed limit of 50%.

It would be interesting to see how the political class reacts to this judgment. Will it try to negate it by passing another constitutional amendment? It is highly unlikely considering even such an amendment can be struck down. The political response may depend entirely on the court’s decision regarding reservations. If the Court demands more accountability, it is highly likely that the politicians would try to circumvent its decision. It might actually lead to a demand for reservations to be introduced in the higher judiciary. Interestingly enough, the court has defined independence of the judiciary system as one of the basic structures of the India.

- Abhinandan Srivastava

1 comment:

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