Supreme Court reserves verdict on scope of judicial review of legislations in Constitution's 9th Schedule

A nine–judge Constitution Bench of the Supreme Court of India has reserved its verdict on the scope and powers of Parliament to insert legislation in the Ninth Schedule of the Constitution to keep it beyond judicial review.

The Bench comprising Chief Justice Y.K. Sabharwal and justices Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan, Altamas Kabir and D.K. Jain reserved verdict at the conclusion of marathon arguments spread over five days.

On October 30, the Bench had commenced hearing to examine the scope of judicial review about legislations being put in the Ninth Schedule of the Constitution, with noted jurist Fali S. Nariman advocating abolition of the provision enabling such a procedure.

According to Nariman, Article 31B, which enables a law to be placed under the Ninth Schedule, ought to go as it did not define the category of legislations which requires protection from judicial review as has been enumerated in Article 31–A for Acts relating to agrarian reforms.

He emphasised that there was a need to give a fresh look to Article 31B as it enables to revive a law held invalid, as only in the Christian theology a dead can be resurrected.

The senior advocate said legislations which have been held invalid by the court are put strightaway in the Ninth Schedule without removing the defects.

"It is just like giving a life to a dead body by merely putting a law into Ninth Schedule," he told the Bench.

Nariman said the mode and procedure prescribed for placing a law under the Ninth Schedule have to be followed. "It is not permissible to disregard the established mode. A law struck down is void and cannot be restored," he added.

He said a law put in the Ninth Schedule would be valid only if it did not damage the basic structure of the Constitution. "The various constitutional amendments by which additions were made to the Ninth Schedule on or after April 24, 1973, will be valid only if they do not damage or destroy the basic structure of the Constitution," Nariman told the Bench. Referring to the 1973 Kesvananda Bharti verdict of the apex court, Nariman said Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution.

While the noted jurist was making his submissions, the Bench wanted to know if the scope of judicial review of a law was taken away how can the court give its interpretation on fundamental rights. Furthermore, the Bench observed that if the power of judicial review was taken away, did it not amount to encroachment upon the judiciary. Advancing his arguments, Nariman said every single Act purported to be put in Ninth Schedule by way of Article 31B must be allowed to be tested.

He said where a provision of an Act was struck down by the apex court in exercise of the powers of judicial review, it was in any way impermissible to place that enactment or provision in the ninth Schedule, at least without the relevant state legislature re–enacting that Act or struck–down provision.

Appearing on behalf of the Attorney General, Additional Solicitor General Gopal Subramanium asserted on the outset that any amendment that was passed with reference to Article 31B could be challenged on the ground that it was violative of the basic structure.

The Ninth Schedule was constitutionally valid and it did not offend the basic structure of the document, he said.

"However, any constitutional amendment which is relatable to Article 31 B (ninth schedule) must not violate the basic structure. To examine whether the basic structure has been violated would necessarily involve powers of judicial review," he said.

Subramanium pointed out that there was no challenge in the present proceedings that the Schedule violated the basic structure of the Constitution.

"In view of a constitutional provision not having been challenged, there is no occasion to whittle down its operation by a process of interpretation. Courts would be bound by all provisions of the Constitution including such a provision which per se does not violate basic structure," Subramanium submitted.

He maintained that the essence of the apex court judgement in the Kesavananda Bharati case was that constitutional provisions could be amended as long as they did not emasculate the basic structure.

"However, any amendment which was passed with reference to Article 31 B could be challenged on the ground that it was violative of the basic structure," Subramanium said.

According to him, "Article 31 B is a device for saving laws. It has to be read along with Ninth Schedule and it does not define the category of laws, which are to receive its protection."

"Thus, no act can be placed in the Ninth Schedule except by Parliament and since the Ninth Schedule is a part of the Constitution, the provisions governing the constitution must be complied with," Subramanium contended.