Laws in Ninth Schedule open to judicial review, rules Supreme Court

Laws put under the Ninth Schedule of the Indian Constitution cannot be granted blanket immunity from judicial review, a nine–judge bench of the Supreme Court has ruled.

Nearly 280 laws or legislations were included in the Ninth Schedule to take away the jurisdiction of the courts to examine their legality.

In a unanimous verdict, January 11, a nine–judge bench headed by outgoing Chief Justice Y.K. Sabharwal held that all laws included in the Ninth Schedule after the evolution of the basic–structure doctrine of the constitution – through the 1973 verdict of the Keshavananda Bharti case – are open to judicial review.

Such laws, falling within the scope of the Ninth Schedule to protect them from the vagaries of judicial reviews, also have to conform to the basic–structure doctrine of the Constitution and fundamental rights of the citizens, the bench ruled.

The bench held that in the name of Constitutional amendments, Parliament cannot alter the basic structure of the Constitution or impinge upon the citizens' fundamental rights.

These laws would be examined separately by a three–judge bench. If they were found to violate the fundamental rights, abridged or abrogated any of the rights or protection granted to the people, they would be set aside by the court.

Besides the Chief Justice, other judges on the bench were Justices Ashok Bhan, Arjit Pasayat, B.P. Singh, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanian, Altamas Kabir and D.K. Jain.

The bench, however, was unanimous on the verdict on the competence of Parliament to put any law under the Ninth Schedule and, thus, beyond judicial scrutiny.

With the recent landmark judgment, under scanner will come several controversial legislations including the Tamil Nadu Reservation Act which provides for 69 percent reservation, violating the apex court's 50 percent ceiling on quotas.

The legal fraternity has welcomed the judgment.

Dismissing apprehensions that the verdict is going to open a Pandora's Box, former Attorney–General Soli Sorabjee said, "the verdict only reaffirms Fundamental Rights," ruling out any possibility of a Judiciary–Legislature confrontation over the issue.

Dismissing talks that the verdict proves that the judiciary is attempting to encroach upon the domain of the legislature, Union Law Minister H.R. Bharadwaj said that the decision of the court has upheld the basic principle of the Ninth Schedule. "The court has upheld the basic principle of Ninth Schedule and also preserved the principle of judicial review," he said.

Bharadwaj ruled out any possibility of confrontation between the two pillars of democracy. "There is no question of confrontation between two institutions of democracy as every institution is working under demarcated spheres," he said. "The power of review has been granted to judiciary only. Judgment will not have any adverse impact on the executive."

Legal experts say that laws put under the Ninth Schedule after April 24, 1973 now do not get full immunity from judicial review. "Any Act that has been made under the Ninth Schedule after April 24, 1973 does not get absolute immunity, but will be examined to see whether it takes away from the basic structure of the Constitution," T.R. Andhyarujina, the lawyer for the Union Government and former Solicitor–General of India, said.

"The latest judgment of the Supreme Court does not really break new ground as this was already decided by the Court in 1980 in Waman Rao's case. Therefore, the latest judgment should not affect Parliament's power to amend the Ninth Schedule materially" he said, adding, "However, the latest judgment emphasizes forcefully the value of fundamental rights and the Supreme Court's readiness to protect them and in that sense will be a deterrent to an indiscriminate use of a legitimate Constitutional device by Parliament."

Congress leader and Supreme Court advocate Abhishek Manu Singhvi said the decision is not new.

"These are complex matters of adjudication. There is nothing novel because it reasserts the supremacy of basic structure," he said, adding, "The basic structure of the Constitution is supreme Every law that has been put in the Ninth Schedule is not suspect and is not violative of the basic structure. There is nothing in the judgement that can be called confrontationist."

According to Constitutional expert Subhash Kashyap, under the Constitution, the Supreme Court has the power of judicial review and it is doing its duty. "The court is only doing its duty and Parliament is doing its. So long as they remain within their limits, there is no problem. The Supreme Court has the power of judicial review under the Constitution. If any attempt is made to evade judicial review by putting a large number of 284 Acts under the Ninth Schedule saying they are immune to judicial review, that is a dishonest way of doing things under the Constitution," he said.

Politicians were more divided in their views.

BJP spokesman Ravi Shankar Prasad said that the basic structure is an integral part of the Constitution and judicial review is a basic part of the structure. "It [the verdict] will act as a restraint on frequent political demands and pressure to shield a law regardless of its flawed character. So we welcome the decision. Ninth Schedule should not become a shelter place where laws, however draconian, can be put," he said.

"The Supreme Court has the right to interpret whether a law is constitutionally valid or not," said Union Steel Minister, Ram Vilas Paswan, adding, as an afterthought, "But Parliament has the right to make laws."

"Parliament's decision is that of the majority. Its hands cannot be tied down," said Priya Ranjan Dasmunshi, Parliamentary Affairs Minister, expressing his disappointment.

"If courts started scrutinizing laws enacted for public welfare, Parliament might lose its individuality, endangering democracy," said Union Health Minister, A. Ramadoss.

Meanwhile, political parties in Tamil Nadu have begun playing the blame game.

Even as Chief Minister M. Karunanidhi indicated that his band of social justice activists would shed blood to defend the existing quota system under the Tamil Nadu Reservation Act, the opposition AIADMK demanded his resignation for failing to effectively defend the immunity enjoyed by the existing quota from judicial review.

AIADMK's Jayalalitha accused DMK's Karunanidhi of supporting the Congress government's "two–faced" stand on the issue, and demanded that the Chief Minister "should own moral responsibility and step down for having blatantly betrayed the interests of Tamils."

Jayalalitha claimed that she had predicted the central government's lukewarm attitude towards the issue two months ago. "Attorney–General Milon Bannerjee had abstained from appearing in the court when the bench was adjudicating a public interest litigation challenging the immunity given under the Ninth Schedule," she said.

Patalli Makkal Katchi (PMK) founder S. Ramadoss saw the development as a threat to democracy and social justice. He exhorted the central and the state government to take immediate steps to ensure that there was no danger to the 69 percent quota norm in Tamil Nadu. He said the Prime Minister should convene a meeting of chief ministers to elicit their views on how to protect laws included in the Ninth Schedule.

"In a democracy, public welfare is the most important thing and if the courts start scrutinizing laws enacted for public welfare, Parliament and state legislatures will lose their individuality," he said.

MDMK general secretary Vaiko pointed out that the centre had failed to uphold the rights of the people before the court. He blamed the DMK regime for failing in its duty to bestow adequate attention on the issue and put forward its case effectively.

However, Janata Party leader Subramanian Swamy has welcomed the judgment, saying that such scrutiny would check the violation of fundamental rights.

The Leftist party, Communist Party of India (CPI) has also denounced the verdict, saying that the Ninth Schedule was a safeguard for giving a legal backup to decisions on matters concerning social justice and economic reforms as per the requirements of 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 percent 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.

In Andhra Pradesh, the TDP chief and former Chief Minister Chandrababu Naidu said the judgment should be accepted since the Supreme Court is the final authority of law in India.

"However, there are some social problems which have to be answered, like reservation and everybody has to take note of it," he said.

About the Ninth Schedule

The Ninth Schedule was created by a Constitution Amendment in 1951 by former Prime Minister Jawaharlal Nehru to push land reforms. The basic purpose of the Schedule was to abolish zamindari system. Initially, only land reform laws were supposed to be included in the Ninth Schedule, but in the recent times governments have included several controversial legislations under it to avoid judicial scrunity.

The Ninth Schedule was included in the Indian Constitution by the Constitution (First Amendment) Act, 1951, along with Article 31B. The objective of the Schedule is to immunize certain acts and regulations from a challenge on the ground of violation of fundamental rights under Articles 14, and 19 of the Constitution. Thus, its purpose was to deprive the courts of the power to challenge the validity of the acts passed by the legislature.

Article 31B, which gives blanket protection to all items in the 9th Schedule, is also retrospective in nature. So, even if a statute which has already been declared unconstitutional by a court of law is included within the schedule, it is deemed to be constitutional from the date of its inception.