More Findings at Dwaraka.......Leading to Lord Krishna?

An underwater archaeologist of the ASI examines an ancient structure off the shore of Dwaraka; a circular structure on the shore at Dwaraka; fragment of an ancient structure found underwater; remains of an ancient structure in the forecourt of the Dwarakadhish temple.

CHENNAI: Ancient structural remains of some significance have been discovered at Dwaraka, under water and on land, by the Underwater Archaeology Wing (UAW) of the Archaeological Survey of India (ASI). Alok Tripathi, Superintending Archaeologist, UAW, said the ancient underwater structures found in the Arabian Sea were yet to be identified. "We have to find out what they are. They are fragments. I would not like to call them a wall or a temple. They are part of some structure," said Dr. Tripathi, himself a trained diver.

Thirty copper coins were also found in the excavation area. The structures found on land belonged to the medieval period. "We have also found 30 copper coins. We are cleaning them. After we finish cleaning them, we can give their date," he said.

Dwaraka is a coastal town in Jamnagar district of Gujarat. Traditionally, modern Dwaraka is identified with Dvaraka or Dvaravati, mentioned in the Mahabharata as Krishna's city. Dwaraka was a port, and some scholars have identified it with the island of Barka mentioned in the Periplus of Erythrean Sea. Ancient Dwaraka sank in sea and hence is an important archaeological site.

The first archaeological excavations at Dwaraka were done by the Deccan College, Pune and the Department of Archaeology, Government of Gujarat, in 1963 under the direction of H.D. Sankalia. It revealed artefacts many centuries old.

The ASI conducted a second round of excavations in 1979 under S.R. Rao's direction. He found a distinct pottery known as lustrous red ware, which could be more than 3,000 years old. Based on the results of these excavations, the search for the sunken city in the Arabian Sea began in 1981. Scientists and archaeologists have continually worked on the site for 20 years.

The UAW began excavations at Dwaraka again from January 2007. Dr. Tripathi said: "To study the antiquity of the site in a holistic manner, excavations are being conducted simultaneously both on land [close to the Dwarakadhish temple] and undersea so that finds from both the places can be co-related and analysed scientifically."

The objective of the excavation is to know the antiquity of the site, based on material evidence. In the offshore excavation, the ASI's trained underwater archaeologists and the divers of the Navy searched the sunken structural remains. The finds were studied and documented.

On land, the excavation is being done in the forecourt of the Dwarakadhish temple. Students from Gwalior, Lucknow, Pune, Vadodara,Varanasi and Bikaner are helping ASI archaeologists. In the forecourt, old structures including a circular one have been found. A small cache of 30 copper coins was discovered.

LSU Professor Resolves Einstein’s Twin Paradox
02/14/2007 04:12 PM
Subhash Kak, Delaune Distinguished Professor of Electrical and Computer Engineering at LSU, recently resolved the twin paradox, known as one of the most enduring puzzles of modern-day physics.

First suggested by Albert Einstein more than 100 years ago, the paradox deals with the effects of time in the context of travel at near the speed of light. Einstein originally used the example of two clocks – one motionless, one in transit. He stated that, due to the laws of physics, clocks being transported near the speed of light would move more slowly than clocks that remained stationary. In more recent times, the paradox has been described using the analogy of twins. If one twin is placed on a space shuttle and travels near the speed of light while the remaining twin remains earthbound, the unmoved twin would have aged dramatically compared to his interstellar sibling, according to the paradox.

“If the twin aboard the spaceship went to the nearest star, which is 4.45 light years away at 86 percent of the speed of light, when he returned, he would have aged 5 years. But the earthbound twin would have aged more than 10 years!” said Kak.

The fact that time slows down on moving objects has been documented and verified over the years through repeated experimentation. But, in the previous scenario, the paradox is that the earthbound twin is the one who would be considered to be in motion – in relation to the sibling – and therefore should be the one aging more slowly. Einstein and other scientists have attempted to resolve this problem before, but none of the formulas they presented proved satisfactory.

Kak’s findings were published online in the International Journal of Theoretical Physics, and will appear in the upcoming print version of the publication. “I solved the paradox by incorporating a new principle within the relativity framework that defines motion not in relation to individual objects, such as the two twins with respect to each other, but in relation to distant stars,” said Kak. Using probabilistic relationships, Kak’s solution assumes that the universe has the same general properties no matter where one might be within it.

The implications of this resolution will be widespread, generally enhancing the scientific community’s comprehension of relativity. It may eventually even have some impact on quantum communications and computers, potentially making it possible to design more efficient and reliable communication systems for space applications.

For more information, please contact Subhash Kak at 225-578-5552 or kak@ece.lsu.edu.

The Magic of Turmeric

The Magic of Turmeric
by Ramesh Menon

The world today is discovering the magic of Turmeric. Indians knew it all along. Worldwide research is now validating the medicinal properties of the root. In a quiet corner of Noida, the most modern town of Uttar Pradesh in India, scientists have discovered that turmeric has properties that can help fight cancer.

If your grandma put a pinch of turmeric powder into her cooking everyday, it was with good reason. It was not just to give the bright yellow glow to food. It was her best antidote for you. You will rarely see an Indian kitchen without a can of turmeric powder on the shelves. Most of us think it is used in our cooking as curcumin; the bright yellow pigment in the root gives color to the food. But Ayurveda, the ancient form of Indian medicine, had recognized it to be a body cleanser having multiple medicinal properties. Scientific investigations are now showing that it can cure a host of diseases.

Indians have known the magical medicinal properties of turmeric for ages. Ayurveda used it for the treatment of many inflammatory conditions and diseases like arthritic and muscular disorders. It was also used to tackle asthma, flatulence, colic and ringworm.

But today, the versatility of turmeric in combating a number of complex diseases like cancer and multiple sclerosis is amazing scientists abroad. A study by The American Association for Cancer Research in San Francisco, California, shows that turmeric could help lower the risk of cancer. Researchers found in laboratory tests that curcumin can enhance the cancer fighting power in treatment if combined with TRAIL, a naturally occurring molecule that helps kill cancer cells. (TRAIL stands for Tumor necrosis factor related apoptosis inducing ligand).

A study at the University of Texas, Arlington showed that turmeric helped prevent cancer with its anti-oxidant properties. Kathryn Grant and Craig Schneider from the University of Arizona found in clinical trails that turmeric could improve morning stiffness, walking time and swelling in patients with rheumatoid arthritis.

Closer home, scientists at the Institute of Cytology and Preventive Oncology (ICPO) based in Noida, Uttar Pradesh, have recently found that curcumin protects the body from the deadly Human Papilloma Virus (HPV) that is the main cause for cervical cancer. This is how curcumin works: Certain HPV viruses need viral oncogine protein from cells in the body to express themselves rapidly. Curcumin actually stops the protein from epithelial cells to bind with the virus. Clinical trails of the compound have already started in the All India Institute of Medical Sciences, Chittaranjan National Cancer Institute, Tata Memorial Hospital and ICPO. The trails will cost over a crore of rupees and will be financed by the department of biotechnology and the Indian Council of Medical Research. Results are expected to take over three years.

Dr. Mangla Rai, Director General, Indian Council of Agricultural Research points out that as turmeric has got so many medicinal properties and will be a very paying proposition in the years to come and there would naturally be an international interest.

International interest in the neuro-protective potential of turmeric has risen after seeing its efficacy in traditional treatment in India. Over 90 scientific institutions in the United States are today studying the magical medical properties of the ancient Indian herb. Many of them are specifically studying how turmeric can inhibit growth of various types of cancer.

The University of Arizona is using a multi-million dollar U.S. government grant to study turmeric’s anti-inflammatory activities. Its team has shown that turmeric could prevent joint inflammation in rats. It has raised hopes of a cure for arthritis and osteoporosis patients that suffer a lot in their later years. Celebrated activist, Dr. Vandana Shiva, Director of the New Delhi based Research Foundation for Science and Technology and Ecology warns that a cowboy company will patent the research on turmeric that is being done by various American universities financed by private money. An ordinary housewife in India who knew the benefits of turmeric will then be denied benefit of the knowledge that the American research has produced. Since the basis of knowledge of turmeric has come from India, it must be shared, as it is not an original invention. Society has disseminated traditional knowledge without making millions. Let the west learn from that and do that too, she says.

Medical research has recently shown that turmeric could halt the spread of breast cancer to the lungs apart from improving the effectiveness of ongoing medication. It has been seen that turmeric has high does of curcumin that is an antidote to breast cancer. Preliminary tests on mice have already been carried out in England.

How does turmeric work? Curcumin works by shutting down a protein active in t he spread of breast cancer. More interestingly, it is also now believed to even reverse a side effect of commonly prescribed chemotherapy whose prolonged use may actually help to spread the disease. Curcumin breaks down the dose, making the therapy less toxic.

Japanese researchers at the Hamamatsu University School of Medicine say that turmeric may help cure colitis that leads to inflammation of the intestines. A preliminary study at the Vanderbilt University in Nashville, Tennessee has shown that turmeric may arrest the progression of multiple sclerosis that is an incurable disease affecting the brain.

Dr. A.K. Sen, a senior scientist formerly at the National Institute of Science Communication says that scientists in the United States are today proving in labs what Indian traditional knowledge knew for ages. Potent molecules derived from nature and medicinal plants that were traditionally used will show wonders in newer and newer diseases in the future. Such experiments validate doubts that the intellect questions about traditional medicine, he says.

India produces nearly the whole world’s crop of turmeric. It uses 80 per cent of the produce, as it is an important ingredient in Indian cooking occupying a pride of place on every kitchen shelf.

Turmeric in India was always considered a magical herb. Indian folklore had always said that turmeric helped reduce inflammation. It was used as a blood purifier, anti-oxidant, anti-inflammatory, expectorant and skin tonic. It was used to treat measles, cough, sprains, and scabies.

The tuber is aromatic, stimulant and a tonic. It is also useful in curing periodic attacks of hysteria and convulsions. Its juice or dry powder, mixed in buttermilk or plain water, is highly beneficial in intestinal problems, especially chronic diarrhea. About 20 drops of juice of raw turmeric, mixed with a pinch of salt, taken first thing in the morning is considered an effective remedy for expelling worms.

Early Sanskrit works mentioned Turmeric. Both Ayurvedic and Unani practitioners were familiar with its medicinal properties. It was administered to strengthen the working of the stomach. It was mixed with honey to treat anemia. For measles, dry turmeric roots were powdered and mixed with a few drops of honey along with the juice of few bitter gourd leaves. It was also an effective remedy for chronic cough and throat irritations. Half a teaspoon of fresh turmeric powder mixed in warm milk worked wonders for bronchial asthma. Turmeric with caraway seeds or ajwain helped tackle stubborn colds. It’s paste mixed with lime and salt was used to treat sprains. Your grandmother knew this, before western laboratories discovered it.

Now, western labs are agog with it. In just one year of 2004, as many as 256 papers on turmeric were published in the United States. At the moment there are clinical trials going on in the US to study curcumin treatment for various ailments like cancer, Alzheimer’s and multiple myeloma. Studies have shown a low incidence of colorectal cancer among groups that consumed turmeric suggesting that it may have anti-cancer properties.

Turmeric is also used in the production of sunscreens. In India, it is a common practice to smear turmeric paste on the outer skin of a bride, as it is believed to be a good cosmetic giving a glow to the skin and destroying bacteria.

The government of Thailand is funding a project to ascertain whether they can identify some compounds in turmeric that can be used in cosmetics.

The Indian Council of Scientific and Industrial Research in the late nineties were shocked when the United States Patent and TradeMark Office granted the turmeric patent to the University of Mississippi. The Indian government appealed to the Patent and TradeMark Office to reexamine the turmeric patent. On examination it was rejected, as Indians knew of the use of turmeric for wound healing properties.

With new western research showing what the yellow magical powder can do for health, it is soon destined to add color to western cuisine. But India’s traditional knowledge still does not get the respect it deserves.

January 13, 2007

Even protected laws invalid if they violate basic rights: SC

Even protected laws invalid if they violate basic rights: SC
Tanu Sharma
Posted online: Friday, January 12, 2007 at 0000 hrs Print Email
Unanimous Nine-Judge Bench: Laws in IX Schedule to shield Govt are open to challenge if Constitution’s ‘basic structure’ at stake

NEW DELHI, JANUARY 11: Clearly reinforcing the pre-eminence of the Constitution and a citizen’s fundamental rights, the Supreme Court, in a milestone verdict today, said that laws in the Ninth Schedule of the Constitution do not enjoy ‘’absolute immunity’’ from judicial review as envisaged by the legislature.
The unanimous 108-page verdict from the nine-judge Constitution Bench, headed by Chief Justice Y K Sabharwal, made it clear that even though an Act is put in the Ninth Schedule by a Constitutional amendment, its provisions would be open to challenge on the ground that it destroys or damages the “basic structure” (of the Constitution) by eroding fundamental rights that pertain to the basic structure.
“A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court,” the bench held.
The bench, including Justices Ashok Bhan, Arijit Pasayat, B P Singh, S H Kapadia, C K Thakker, P K Balasubramanyan, Altamash Kabir and D K Jain, said: “All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them.”
The cut-off date refers to the landmark Keshavanand Bharti vs State of Kerala case in 1973, where a full bench of 13 judges of the Supreme Court said that the Parliament had the power to amend any or all provisions of the Constitution. Seven judges, including then Chief Justice Sikri, ruled that Parliament could not use its powers to alter the basic structure of the Constitution. Each judge gave his view on what he thought was the basic structure but there was no unanimity. The other six judges (the minority view) said fundamental rights belonged to the basic structure and could not be amended by Parliament.
Today’s ruling, therefore, takes that several significant steps forward in that it not only underlines the basic structure doctrine but also specifies that even a Ninth Schedule law has to pass the fundamental rights test.
If the validity of any Ninth Schedule law has already been upheld by the apex court, it would not be open to challenge again, the bench said. However, it laid down the “rights test” for any other law in the Schedule.
“Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule shall be a matter of Constitutional adjudication which will be done by examining the nature and extent of infraction of a Fundamental Right by a statute,” the bench said. It added that this will be done on the “touchstone of the basic structure doctrine” by application of the “rights test.”
The court maintained that the validity of each new Constitutional amendment needs to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed has to be taken into account for determining whether or not it destroys the basic structure. The impact test would determine the validity of the challenge, the bench said.
The verdict, which comes a day after the apex court ruled that Parliament’s decisions were amenable to judicial review, gains importance in the wake of laws like the one in Tamil Nadu which provides 69% reservation and was placed under the Ninth Schedule to circumvent judicial review by the then Jayalalithaa government. The court had earlier held that social reservations shall under no circumstances exceed the permissible limit of 50%. That law has been challenged in the court. The bench directed that petitions and appeals on the issue be placed before a three-judge bench in accordance with the principles laid out today.
Ninth Schedule was Govt’s SC-free zone, now no longer
• What: Ninth Schedule was introduced in 1951 by the First Amendment of the Constitution. Any law included in this could not be struck down by the judiciary on the grounds that it violates fundamental rights.
• Backdrop: Shortly after Independence, landholders, upset by the government’s acquisition of land to abolish zamindari, moved courts that their right to property — then a fundamental right — was being violated. Parliament enacted two new provisions in the Constitution: Article 31-B (enabling the Ninth Schedule) and Article 31-C allowing certain agrarian reforms.
• Current status: 288 laws in the Ninth Schedule. Key ones: Essential Commodities Act, Foreign Exchange Management Act (FEMA) and its predecessor Foreign Exchange Regulation Act (FERA), Tamil Nadu Backward Classes, SC/ST (Reservation of Seats in Educational Institutions Act, 1993. Most laws are those envisaging land reforms in various states.
• What Next: SC ruling puts a question mark on use of Ninth Schedule to insulate Govt against judicial review. So opens up for review, laws on reservation, land acquisition, even the proposed Delhi law on sealing.
Monumental decision: BJP
• ...Will act as a sobering restraint on frequent political demands and pressure to put a law under the Ninth Schedule, regardless of the flawed character of the law...It will have a stabilising influence on the polity:
• The judgment is not novel since it reasserts the supremacy of the Basic Structure Doctrine...but expands the boundaries of judicial review: Abhishek Manu Singhvi, Congress spokesman
• SC has categorically made it plain that govt cannot escape judicial review via the Ninth Schedule: Subhash Kashyap, Constitutional expert
• The debate’s been on for 50 yrs. This judgment was long overdue. The govt has been making a joke out of the Schedule: P N Lekhi

Fictional immunity

Fictional immunity

The Pioneer Edit Desk

Politics of cynicism exposedThose politicians who had unshakeable faith in the "fictional immunity" offered by Article 31(B) of the Constitution to their cynical - some would say perverse - abuse of power to impose laws not for the larger welfare of the people but to reap electoral benefits have received a rude shock with the Supreme Court declaring that the Ninth Schedule is open to judicial scrutiny. It is a measure of the distance travelled by our politicians that a constitutional device designed in 1951 to protect progressive laws, especially those dealing with land reforms, from needless litigation, has now become a laundry bag where every questionable law that militates against the spirit of the Constitution is dumped. What began as a list of 13 has bloated to an amazing 284 laws which political parties are reluctant to subject to judicial scrutiny. Any party that has been in power has taken recourse to this short-cut and all, therefore, are guilty of this abuse; of course, the Congress is the worst offender - not because it discovered this constitutional route to avoid judicial scrutiny, but because it showed others how to misuse an otherwise legitimate instrument of enhancing the state's power. For instance, the untenable 69 per cent quota for Scheduled Castes, Scheduled Tribes and Other Backward Classes in Tamil Nadu has been extended the cover of the Ninth Schedule. This is now open to scrutiny by the judiciary which shall decide whether by crossing the 50 per cent limit set by the Supreme Court, Tamil Nadu has violated the basic structure of the Constitution, both in letter and spirit. In its judgement on Thursday, the Supreme Court has unambiguously stated that the fundamental right to equality, as part of the basic structure of the Constitution, will include Article 15, which prohibits discrimination on any ground, and Article 16, which guarantees equal opportunity in employment to all. By doing so, it has put politicians who thrive on identity politics by pandering to castes and communities on notice; we may yet see the demise of crass vote-bank politics.

Little purpose will be served by seeking ways and means of negating the Supreme Court's judgement, a point that politicians from Tamil Nadu, who are understandably perturbed, need to take note of. Indeed, if too-clever-by-half politicians try to blunt the judgement by taking recourse to deceptive tactics will fetch grief upon themselves, apart from triggering an unnecessary contest for supremacy between the executive and the legislature on one side, and the judiciary on the other. The Supreme Court, it must be stressed, has not arrogated to itself the right to ride roughshod over the legislature or the executive; it has merely reasserted the primacy of the Constitution and the judiciary's right to interpret laws in the context of constitutional provisions. So long as this does not meander into judicial adventurism or activism, nobody has anything to complain about and the people have every reason to celebrate. It is now incumbent upon both the executive and the legislature to behave in a responsible manner and ensure that their actions and decisions do not become the subject of scorn and ridicule, which they shall if politicians fail to read the writing on the wall after Thursday's judgement. On its part, the judiciary must exercise extreme caution while taking up issues for scrutiny. If the impression were to gain ground that the legislature's independence is being curbed or the executive's authority eroded, it would cause more harm than good.

Rulings open Pandora's box

Rulings open Pandora's box
Navin Upadhyay Pioneer News Service

The two back-to-back rulings of the Supreme Court seem to settle the long-drawn dispute about the superiority of the constitutional institutions under the Indian democratic set-up.
The legislature still enjoys the freedom to "Act", but the judiciary will have the last say.
The favourable political reaction to the twin rulings shows how the political class has failed to grasp the far-reaching implications of judiciary's foray into their exclusive domain.
Lok Sabha Speaker Somnath Chaterjee, who initially objected to the apex court's move to examine the Chair's decisions, joined the political parties in welcoming the Wednesday's Supreme Court ruling that upheld disqualification of 11 MPs in the cash-for-query scam.
On Thursday again, many political parties, including Law Minister HR Bhardwaj, reacted similarly to the court's ruling broadbasing the array of laws that would be now open to judicial review even if placed under Ninth Schedule of the Constitution. Incidentally, the court's ruling also covered Article 15, which gave the Government power to provide reservation to socially and economically backward classes.
Obviously, few have paid attention to the serious implications of the watershed rulings, making justiciable the legality and constitutionality of all legislative proceedings, including action of the Chair. In doing so, the court took away the immunity enjoyed by the legislature under Article 122 of the Constitution.
In the famous JMM payoff, the four Jharkhand MPs escaped prosecution under the cover of safeguard provided by Article 122 even though charges of bribe-taking stood established against them. After the latest ruling, all such cases will be liable to judicial scrutiny and the court will have liberty to order their prosecution or otherwise.
The two rulings have now opened a Pandora's box. Bringing legislative proceedings under judicial review has vast implications. Speaker Chaterjee may be satisfied that the court has upheld his decision to disqualify the MPs, but the judgement has seriously eroded the Chair's authority. In similar cases in future, the court will be free to overturn the Chair's decision. The Speaker and Parliament have now to act under constitutional parameters, which will be defined and interpreted by the court.
Going a step further on Thursday, the court imposed more restrictions on the legislature's law-making powers, and in a way, applied a much-needed brake on Parliament's tendency to misuse constitutional provisions like Article 15 for political gains. The ruling will put paid to any attempt by the Government to bypass judicial scrutiny in making fresh quota laws. Its immediate fallout will be an inevitable legal challenge to Tamil Nadu reservation law that provided 69 per cent quota and remained shielded from scrutiny under Ninth Schedule.
Major legislations under challenge:

The Tamil Nadu Backward Classes, SC and ST (Reservation of seats in Educational Institutions and of appointments or posts in the services under the State) Act, 1993

The Foreign Exchange Regulation Act, 1973 (FERA)

The Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1976 (COFEPOSA)

The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976

CPI opposes SC judgement on Ninth Schedule

CPI opposes SC judgement on Ninth Schedule[ 12 Jan, 2007 1903hrs ISTPTI ]

NEW DELHI: Opposing the Supreme Court judgement on the Ninth Schedule of the Constitution, the CPI on Friday said it was a safeguard for giving a legal backup to decisions on matters concerning social justice and economic reforms as per the requirements of the society. Commenting on the verdict that certain laws in the Schedule could be open for judicial scrutiny, the party's Central Secretariat said this was "a matter which only the legislature, which represents the will of the people, can decide upon". The cases of abolition of the zamindari system and the 69 per cent reservation in Tamil Nadu were of such nature, the CPI said, asserting that "it would not be correct to subject such cases to judicial review". "The Supreme Court should not assume powers which make it the final arbiter in all such cases. This can have serious and unforeseen implications," the party warned and called for a debate on the verdict. The apex court has ruled that about 250 laws put in the Ninth Schedule for blanket protection against judicial scrutiny would be open to attack if they damage the basic structure of the Constitution or take away fundamental rights.

Govt can no longer seek immunity under Ninth Schedule

Judiciary declares its supremacy

Abraham Thomas | New Delhi


Govt can no longer seek immunity under Ninth Schedule: SC

Continuing to make incursion into legislative territory, the Supreme Court on Monday declared that laws under the Ninth Schedule will be open to judicial scrutiny if they violate fundamental rights, which are the "heart and soul" of the Constitution.

This judgement is unprecedented in two respects. One, it allows a free hand to the judiciary to examine a vast range of laws, which enjoyed immunity under Ninth Schedule. Earlier, under Article 31B, the court had limited powers to examine laws which violated the basic structure of the Constitution. Article 31B formed the basis of Ninth Schedule and granted protective cover to laws from judicial scrutiny.

Second, the court held that fundamental right of equality, as a part of the basic structure of Constitution, will include Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and Article 16 (equality of opportunity in matters of public employment). This implies that the Government will have to adequately justify its laws providing reservation to any particular caste or religion without getting the benefit of absolute immunity, by conveniently placing it under Ninth Schedule.

The decision pronounced by a Constitution Bench comprising nine judges was headed by Chief Justice YK Sabharwal, after a reference received from a five-judge Bench set apart to consider the validity of laws under the Ninth Schedule. Ambiguity prevailed due to certain past judgements of the Supreme Court upholding the First Amendment of 1951 introducing Article 31B which provided for the Ninth Schedule. Under it, any Act or regulation automatically assumes validity and cannot be struck down for violation of fundamental rights. Further, these Acts could not be challenged in any court of law.

Initially, the Government's action was upheld since only land reform laws got included in the Schedule. But over the years, the number of laws under the Schedule increased from 13 to a whopping 284.

Noting this dangerous trend, the Bench noted, "The absence of guidelines for exercise of such power means the absence of constitutional control which results in destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full power of judicial review to determine the constitutional validity of such exercise."

On April 24, 1973, a 13-judge Bench of the Supreme Court tackled the issue by declaring that any law under Ninth Schedule can be held invalid on the "touchstone of basic structure". Treating this to be the cut-off date, the Bench held, "Article 31B after April 24, 1973, despite its wide language cannot confer unlimited or unregulated immunity." The Bench declared that since this date, all Acts/regulations included under Ninth Schedule would be open to scrutiny in courts, except those which have been validated in the past by the court.

Justifying judicial intervention, the Bench questioned how Parliament, which enacts laws, be made to justify its own laws. Offering sufficient reasons, it said, "The existence of the power of Parliament to amend the Constitution at will, with requisite voting strength, so as to make any kind of laws that excludes Part III, including power of judicial review under Article 32, is incompatible with the basic structure doctrine." Thus, once Article 32 (remedy to enforce rights through Supreme Court) is triggered, every addition to the Schedule must answer to the complete test of fundamental rights.

Therefore, it concluded, "Such exercise, if challenged, has to be tested on the touchstone of basic structure as reflected in Article 21 (Right to life) read with Article 14 (Right to equality) and Article 19 (free speech and expression), Article 15 (Right against discrimination) and the principles thereunder."

Rejecting the "fictional immunity" offered under Article 31B, the court made it clear that such Acts will have to stand the scrutiny of violation of fundamental rights, and further whether this violation is destructive of the basic structure doctrine. "The basic structure doctrine requires the State to justify the degree of invasion of fundamental rights," the Bench said, adding, "The greater the invasion into essential freedoms, greater is the need for justification and determination by court whether invasion was necessary and if so, to what extent."

In deciding this degree of invasion on the fundamental right, the test by court would involve "essence or principle of the right or nature of violation," to determine its impact on the basic structure of the Constitution.

The order has given a blow to the plans by the Centre to place the controversial quota Bill providing 27 per cent reservation for OBCs in educational institutions. Further proposals were in pipeline to incorporate the sealing law, Delhi (Special Provisions) Act, 2006 under the Schedule too. The Centre had all along maintained that in view of the "protective umbrella" offered under Article 31B, challenge to laws under the Schedule can be based on basic structure doctrine, besides, "lack of legislative competence" and "violation of other constitutional provisions".

The court while disposing the reference, directed a three-judge Bench to dispose the cases pending before it on this issue.

Judiciary Versus Legislature

Unprecedented, unanimous verdict to have far reaching implications

Laws placed under Ninth Schedule after April 24, 1973 will be open to challenge in court if they violate fundamental rights

Verdict a blow to Centre's plans to place controversial law providing 27 per cent reservation for OBCs in educational institutions in 9th Schedule

Immediate fallout likely on Tamil Nadu law that provides 69 per cent quota and remained shielded from judicial scrutiny under Ninth Schedule

Proposals in pipeline include sealing law, Delhi (Special Provisions) Act, 2006

Ruling on 9th Schedule laws to have far-reaching consequences

Ruling on 9th Schedule laws to have far-reaching consequences

Satya Prakash

New Delhi, January 11, 2007
The Constitution Bench ruling on the Ninth Schedule laws will have far-reaching consequences for the Indian polity and society as the Supreme Court for the first time said that Articles 15 and 16 of the Constitution are part of the “basic structure” of the Constitution.

Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth while Article 16 guarantees equality of opportunity in matters of public employment.

However, clauses 4 and 5 of Article 15 respectively empower the State to make provisions for reservation in matters of education in favour of OBCs and SC/ST students.

Similarly clauses 4 of Article 16 empowers the State to make special provisions for any class of citizen not adequately represented in public employment. Clause 4A and 4B again are enabling provisions empowering the State to make laws providing reservation in promotions and carry forward rule in case of unfilled vacancies for reserved groups.

But after this ruling placing Article 15 and Article 16 on a par with Article 14 and 21 which are considered to be part of the basic structure, it would become difficult for any quota law to withstand judicial scrutiny if challenged for violation of these provisions.

Taking the law laid down in the Keshwanad Bharati case even further, the Bench said, "fundamental rights are interconnected and some of them form part of the basic structure as reflected in Article 15, Article 21 read with Article 14 and Article 14 read with Article 16, 16(4), (4A) (4B) etc.

The Bench said that "it is impermissible to destroy Article 14 and 15 or abrogate or en block eliminate these fundamental rights."

The government’s move to provide 27 per cent reservation to Other Backward Classes in government-run educational institutions is already under challenge. Besides, the court has issued notice to the Government on another petition challenging all kinds of reservation in government jobs, educational institutions, Parliament and state assemblies.

It would not be possible for the Government to place reservation laws enacted by Parliament or state assemblies in the Ninth Schedule as they would not enjoy the immunity under the protective unbrella making them immune to challenge in courts on the ground of violation of fundamental rights.

Another Constitution Bench had in October last ordered a 50 per cent ceiling on quota saying “a numerical benchmark is the surest immunity against charges of discrimination… If the extent of reservation goes beyond the cut-off point, then it results in reverse discrimination.”

The talk about placing the law providing for one-year-moratorium on sealing and demolition in the capital would also end after this judgment.