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.