L A W  &  J U S T I C E

Balancing Power in Indian Polity

Indian Supreme Court is in an assertion mode these days. While agreeing to parliament’s right to expel its members for gross misconduct, it affirmed that issue within its jurisdiction. In the same way a constitution bench declared that 9th schedule created to create a more just social and economic order was not beyond its jurisdiction. This schedule created way back in 1951 to protect land reforms, nationalisation of economic institutions and other affirmative action was accepted as sacrosanct. The highest court, which got thousands of hutments demolished, was seen as much less forceful when it came to similar violations by the middle and the upper middle class, inviting loud protests even from a former prime minister cry foul. Senior lawyer and commentator
Joginder Singh Toor takes a hard look at all this.

Depriving the judiciary of its powers to review of certain laws even if flawed, by placing the same in the 9th schedule of the Constitution, has for too long been a matter of concern and controversy in political, legal and jurisprudential circles. A nine judges Constitution Bench has now attempted to strike an institutional balance in its January 11,2007 judgment. It pronounced that the laws placed in this Schedule are not immune from judicial review.

To secure paramount position for the Constitution, and to ensure that instruments emanating from any source of law, permanent or temporary, legislative or precedental, Article 13 was made an integral part of Chapter III of the Constitution of India relating to fundamental rights which declares,  “All laws in force in the territory of India or any law to be enacted there after, in so far as they are inconsistent with the provisions of the fundamental rights shall to the extent of such inconsistency be void.” The power to declare an enactment void lies with the Supreme Court and the High Courts, in all cases where a legislative enactment is demonstrably violative of fundamental rights, or when it transgresses the federal distribution of powers under the Constitution.

Just after one year of the coming into force of the Constitution, 1st amendment was made so as to protect certain laws from the ambit of Article 13 even if they violated the fundamental rights of the individual if the laws related to acquisition of any estate or any right therein, taking over the management of any property and extinguishments or modifications of any rights of management of corporations or of any voting rights of shareholders, or amalgamation of any two corporations. The 1st amendment inserted Article 31A in the Constitution and to be of retrospective effect. Not only this Article 31B was inserted by the same 1st amendment to the Constitution to be effective from 8.6.1951 so as to exclude acts and regulations specified in the Ninth Schedule and any of the provisions thereof from judicial review. Article 31B makes a contrary declaration that none of the Acts or Regulation made part of Ninth Schedule shall be void on the ground that such legislation is inconsistent with or takes away or abridges any of the rights conferred as fundamental rights. As a result 284 Acts were made part of the ninth Schedule, which escaped judicial scrutiny.

The controversy as to the nature of an amending Act, making constitutional amendment, if, can be subject to Article 13 affirmed in Golan Math’s case that amending law is law within the meaning of Article 13 and can be scrutinized by judicial review if it violates or abridges fundamental rights, having been reversed in Kasha Nath Bart’s case along with 24th amendment which excluded amending Act from the purview of Article 13. At the same time Parliaments power to amend the Constitution was up held subject to the limitation that basis structure of the Constitution couldn’t be changed. In this background, Article 31B remaining intact, and Volume of ninth Schedule ever increasing, with latest inclusion of Tamil Nadu Act providing 69% reservation against the verdict of the Supreme Court limiting the maximum reservation to 50% many such other Acts already placed in the 9th Schedule gave rise to the present litigation to determine if the judicial powers of the Supreme Court to review legislative measures can be indirectly curtailed.

The Constitution Bench has held that there could not be any blanket immunity from judicial review of laws inserted in the 9th Schedule. In a unanimous verdict its asserted the supremacy of the court to examine the validity of the inclusion of laws in the 9th Schedule and rejected the argument that introduction of Article 31B was just a one time measure to protect agrarian laws after the abolition of the Zamindari System and that it out lived its purpose. The Bench did not go into the validity of Article 31B as it was not under challenge. During Jawaharlal Nehru’s regime 13 laws were included in the 9th Schedule. Thereafter it became a “laundry” with every sort of act inserted in it on the request of State Legislature.

The power to grant absolute immunity is not compatible to the basic structure doctrine, particularly when there is no basic criteria for inclusion of a law in the 9th Schedule. The result is that it nullifies entire part III of the Constitution. The golden triangle rights under Article 14, 19 read with Article 21 formed basic feature of the Constitution. Any challenge made to such laws has to be tested on the touchstone of Constitutionality.

The Supreme Court taking note of various amendments to the Constitution has observed, “Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law….The principle of Constitutionalism is now a legal principle which requires control over the exercise of governmental power to ensure that it does not destroy the democratic principle upon which it is based.”

The Union Law Minister welcomes the judgment by saying that States will now have to think twice before requesting the center to place any law in the 9th Schedule, forgets the role of the center.

The reservations to the judgment from political circles are constrained of the determined verdict in one after the other case, to curb the desire of a legislative house. Yet the debate must focus on the division of powers. Legislators are answerable to the people and affirmative action is one way to bring social and economic justice to the millions of deprive people. The argument about Fundamental Rights and courts assertion what it constituted forgets the Preamble of the constitution, which declares India to be a socialist and secular republic. Why should the  laws be not tested against the touchstone of Preamble?

[Jogindersingh_toor@yahoo.com]

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President

Satish K. Jain
Executive Vice President

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