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Home > News > PTI

Laws violating Constitution's framework open to review: SC

January 11, 2007 11:25 IST
Last Updated: January 11, 2007 16:11 IST

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Ninth Schedule can be changed: Govt

In a landmark judgment with far reaching implications, the Supreme Court on Thursday ruled that any law placed under the Constitution's Ninth Schedule after April 24, 1973, providing immunity from legal challenges are subject to scrutiny of courts if they violated fundamental rights.

In an unanimous verdict, a nine-member Constitution bench headed by Chief Justice Y K Sabharwal rejected the government's claim that certain laws, even if they infringed the fundamental rights of citizens, cannot be subjected to judicial review, if the legislations were placed under the Ninth Schedule.

The judgment, which came a day after apex court ruled that Parliament's decisions were subject to judicial review, assumes significance in the wake of laws like the one in Tamil Nadu, which provides 69 per cent reservations, and has placed the law under the Ninth Schedule to circumvent judicial review.

The apex court had earlier held that social reservations shall under no circumstances exceed the permissible limit of 50 per cent.

To overcome the ruling, the then Jayalalithaa government placed the law under the Schedule.

Several other states had come out with their own laws on land reforms, land ceilings and other local legislations purportedly infringing upon fundamental rights, and had put them under the Ninth Schedule to avoid judicial scrutiny. 

The ruling could affect over 250 legislations enacted by the Centre and various states, and put under the Schedule.

These include Central Coal Mines Act 1974, Additional Emoluments Act 1974, COFEPOSA Act 1974, Sick Textile
Undertaking Act 1974, UP Imposition of Sealing on Land Holdings Act 1974, Orissa Land Reforms Act 1965 and ESMA.

The bench held that although the government was entitled to place laws in the Ninth Schedule, such legsislations if they violated the fundamental rights guaranteed under Articles 14, 15, 19, 20 and 21 of the Constitution are liable to be struck down by courts.

An NGO -- Common Cause had challenged such legislations.

The Supreme Court constituted a nine-member bench to decide on the constitutional validity of the issue.

The NGO had asked whether laws included in the Ninth Schedule on or after April 24, 1973, were entitled to the protection under Article 31-B, which offers immunity against fundamental rights.

The petitioner also wanted to know whether the inclusion of a law in the Schedule was violative of Article 14, 19 and 31 and destroys the basic structure of the Constitution.

Delivering the verdict in a packed courtroom, the bench said the government while putting a law under the Ninth Schedule should adopt a middle path to maintain a balance between the fundamental rights and Directive Principles "that
has to be tilted towards the citizen."

Refusing to accept the government's contention that such laws enjoyed absolute immunity, the bench said that any legislation, which was not compatible with the basic structure of the Constitution can be declared null and void by the courts.

"The power to grant absolute immunity is not compatible with the basic structure of the Constitution," the bench observed.

Expressing its strong resolve to protect the Constitutional guarantees accorded to the citizen, the bench said, "Law put in the Ninth Schedule has to be tested on the touchstone of the basic structure as even a minor change can destroy the basic structure." 

The cut-off date April 24, 1973 has been fixed for the Ninth Schedule as it was on that day a 13-member Constitution bench of the Supreme Court gave a historic ruling in the Keshavananda Bharti case that Parliament had no power to amend the basic structure of the Constitution.

The Ninth Schedule emanates from Articles 31 A and 31 B, which were introduced by the Constitution's (first amendment) Act 1951, with effect from June 18, 1951, to ensure that certain laws were valid even if it violated the fundamental rights of a citizen.

In other words, Parliament arrogated to itself the power to amend the Constitution in any manner it liked, irrespective of the fact whether it overrode the fundamental rights.

Incidentally, in 1952, the Supreme Court in the Shankari Prasad Singh Deo vs Union of India case held that Articles 31 and 31 B were constitutionally valid amendments.

Since a constitutional amendment was an exercise of constituent power, Fundamental Rights under Part III were not immune from such amendment. The effect of that judgment was that Article 13 (2), which prohibited the state from making legislations abrogating the fundamental rights, will not apply in the case of laws placed in the Ninth Schedule of the Constitution.

Secondly, it was held in the said judgment that the powers of the High Court and the Supreme Court were not in any manner infringed and all that was done by insertions of Articles 31 A and 31 B were that a certain class of cases had been excluded from being given the protection of fundamental right.

However, subsequently in 1967 in the Golak Nath case by a majority opinion a 11-member Bench of the apex court ruled that Parliament had no power to amend Part III of the Constitution such as to take away or abridge fundamental rights.

The view was further strengthened in the Kesavananda Bharti case and the Indira Gandhi vs Raj Narian case wherein it was held that Parliament's power to make laws and amend the Constitution cannot take away the fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity.

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