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