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Indira Jaising on the crisis in the judiciary
In order to remove all such land reform laws from being struck down on the ground that compensation was inadequate or on any other ground, Parliament amended the Constitution to create the Ninth Schedule.
Article 31B of the Constitution stated that any law in the Ninth Schedule could not be challenged in the courts. The perception quite clearly then was that the judiciary was the last bastion of vested interests and hence the role of the judiciary in striking down such laws had to be taken away.
This was a progressive measure and a look at the Acts inserted in the Ninth Schedule over the years shows that all land reform laws were put in the Ninth Schedule making them beyond challenge of the Supreme Court.
A turning point in 1973
In the Keshavananda Bharati case (a case argued by the late lawyer Nani Palkhivala challenging the Kerala Land Reforms Act 1963 and the amendment to the Act made in 1969), the Supreme Court for the first time held that any law, including a Constitutional Amendment, which altered the basic structure of the Constitution could be struck down.
This judgment virtually made the judiciary the arbiter of what is the basic structure of the Constitution, as the Constitution has no such listing. It gave the judiciary enormous powers to write or rewrite the Constitution through interpretation.
What judgment on the Ninth Schedule was delivered on January 11?
The Supreme Court has held that it can strike down any law which is included in the Ninth Schedule, if, in its opinion, the law violates the basic structure of the Constitution and if it was inserted after April 24, 1973 (the day the Keshavananda Bharati judgment was delivered.)
The January 11 judgment virtually repeals an important provision of the Constitution, namely Article 31B, and undoes what was done in 1951. In other words, it gives to the Supreme Court the power to strike down any law on the ground that it violates fundamental rights resulting in the violation of the basic features of the Constitution.
It would seem the court is saying that any violation of fundamental rights results in the violation of the basic features of the Constitution.
Thus, the final arbiter on what are fundamental rights, what amounts to a violation of fundamental rights and what are the basic features of the Constitution is now the Supreme Court.
The significance of the January 11 judgment
There is no doubt that the Supreme Court has established its supremacy over Parliament in the matter of basic features and fundamental rights. The judgment is likely to have devastating results and raises several questions.
Will land reform laws enacted after 1973 be struck down on the ground that they expropriate the landlord and thus violate the basic feature of the Constitution, the right to property?
Will Urban Land Ceiling laws be struck down on the same ground?
The majority of the laws in the Ninth Schedule deal with land reform and now can be struck down if some judges of the Supreme Court feel they violate the basic structure of the Constitution.
Bonded labour laws and the Kerala Agricultural Workers Act 1974 feature in the Ninth Schedule. These could be challenged on grounds of violation of the basic features of the Constitution.
We live in times when the Supreme Court believes that liberalisation, privatisation and globalisation are good for the country and any law that hinders these will violate fundamental rights and hence, the basic features of the Constitution.
Therefore, for example, when policies or laws regarding compulsory licensing of life saving drugs are challenged by the pharmaceutical industry, on the ground that a particular policy or law, restricts the freedom of trade and hence prevents globalisation, and if such a law were put in the Ninth Schedule to protect it from challenge in the public interest, the Supreme Court may well say the rights of the pharmaceutical industry are violated and hence, the basic structure.
Thus, the Supreme Court becomes the final arbiter of what is in the public interest. This function can no longer conclusively be performed by Parliament.
If the Contract Labour Act, preventing permanent jobs from being given on contract, is put in the Ninth Schedule, the Supreme Court could well strike it down on the ground that it violated the fundamental rights of employers and hence the basic structure.
Certainly, the Supreme Court will have a busy time deciding the fate of laws and Constitutional Amendments reserving jobs and seats in educational institutions for Scheduled Castes, Scheduled Tribes and Other Backward Classes, on the ground that they violate the basic features of the Constitution.
The impact of the January 11 judgment
It makes the Supreme Court one of the most powerful courts in the world and also one of the most unaccountable, as it is a self-nominated judiciary.
The court now has the power to embrace any economic policy it chooses to interpret as an infringement of fundamental rights. It retains the power to strike down any legislation enacted by Parliament pursuant to the political aspirations of the nation, on the ground that it violates the basic features of the Constitution.
The function of the Supreme Court now becomes quite clearly becomes setting and unsettling political agendas, through its power to decide what are the basic features of the Constitution and what policy considerations it will take into account for interpreting fundamental rights.
Indira Jaising is a wellknown Supreme Court lawyer
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