Supreme Court asserts
Curbs Parliament’s powers on 9th Schedule
New Delhi, January 11
A day after upholding Parliament’s
power to expel its MPs, the Supreme Court in another landmark judgement
today ruled that it has no absolute immunity to frame laws violating the
basic structure of the Constitution and then invoke the provision of the
Ninth Schedule to protect these from judicial scrutiny. According to the
court, it has full power to examine the validity of such laws and strike
these down if they violate the basic rights.
Rejecting the argument of
the government that the court has no role to play once a law is placed
in the Ninth Schedule, a nine-judge Bench, headed by outgoing Chief Justice
Y.K. Sabharwal, said, “This court, being bound by all provisions of the
Constitution and also by the basic structure doctrine, has necessarily
to scrutinise the Ninth Schedule laws.”
It said if any of such laws
violated the fundamental rights under Articles 14 (equality), 15 (religious,
caste and race discrimination), 19 (freedom of speech), 21 (protection
of life and liberty), these are deemed to be striking at the root of the
basic structure of the Constitution and apparently open to judicial review,
even if put in the Ninth Schedule.
The judgement set at rest
the raging debate in political circles in the wake of a demand that the
laws on certain contentious issues like reservation and sealing in Delhi
be put in the Ninth Schedule to take these out of bound for the apex court
to adjudicate upon these.
The judgement improved upon
the famous Keshwananda Bharti case decision of 1973 with the Bench unanimously
concluding that the 29th amendment of the Constitution (in 1972) making
provision in Article 31-B against court’s invalidation of certain laws
by putting these in Ninth Schedule, would not apply to any legislation
that violated the enumerated fundamental rights. The verdict in the Keshwananda
Bharti case was by a 13-judge Bench with 7-6 majority.
The Bench said, “The power
to grant immunity (to Parliament on the Ninth Schedule laws), at will,
on fictional basis, without full judicial review, will nullify the entire
basic structure doctrine. The golden triangle rights under Articles 14,
14 and 19 read with 21, formed basic feature of the Constitution as these
provisions stand for equality and the rule of law.”
Any challenge made to such
laws, has to be tested “on the touchstone” of the basic feature reflected
in Article 21, read with Articles 14, 15 and 19, and the principles laid
down there under, the court ruled. “Justification for conferring protection,
is not blanket on the laws included in the Ninth Schedule by the constitutional
amendments,” the court said.
Tightening the constitutional
provisions on the Ninth Schedule laws, it said any legislation passed after
1973, if violated the basic fundamental rights, was open to challenge in
the court, irrespective of it being placed in the Ninth Schedule.
Since over 30 petitions had
been filed against such laws, including the Tamil Nadu Reservation Act
that raised the ceiling of quota from 50 per cent to 69 per cent, land
reform laws passed by it and West Bengal and Gujarat and certain property-related
laws by some other states, the court said a three-judge Bench would now
decide these petitions on merits as per the laid-down parameters.
But the Bench clarified that
if the apex court had already given validating verdict on placing of any
law in the Ninth Schedule in between, the parameters laid down today would
not affect that order.
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