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SC bench to hear pleas challenging Parliament's power

The Bench headed by CJ YK Sabharwal examines the legislative competence of Parliament, reports Satya Prakash.

india Updated: Oct 29, 2006 19:23 IST

A nine-judge Constitution Bench of the Supreme Court will on Monday commence hearing on a bunch of petitions challenging Parliament's power to place in the Ninth Schedule laws circumventing its orders with a view to pre-empt their judicial review.

The Bench headed by Chief Justice YK Sabharwal would examine the legislative competence of Parliament to pass such laws and take the Ninth Schedule route to make them immune to adjudication.

Other Judges on the Bench are: Justices Ashok Bhan, Arijit Pasayat, BP Singh, SH Kapadia, CK Thakker, PK Balasubramanyan, Altmas Kabir and DK Jain.

The hearing assumes significance as the Legislature and the Judiciary have been at loggerheads in the recent past over alleged encroachment into each other's exclusive domain.
Further, there have been demands from various political parties to enact a legislation to reverse the latest apex court verdict excluding the creamy layer among SCs/STs from the purview of reservation in government jobs.

The court also said that quotas must not exceed 50 per cent, as excessive reservation would result into "reverse discrimination".

A political case is also made out to place in the Ninth Schedule the controversial Delhi Laws (Special Provisions) Act, 2006, which declared one-year moratorium on sealing and demolitions in the national capital, to save commercial establishments in residential areas from the SC's closure order.

The Act proposed to be placed beyond judicial review had earlier been termed by the SC as "prima facie an invalid piece of legislation."

The petitioners have contended that the court's power of judicial review was part of the basic structure of the Constitution and Parliament cannot enact laws to negate this feature.

According to Article 31-B of the Constitution, no law giving effect to the Directive Principles of State Policies shall be deemed to be void on the ground that it is inconsistent with, or takes away, or abridges fundamental rights.

Laws passed under Article 31-B are placed in the Ninth Schedule.

The UPA government has defended Parliament's right to take recourse to the Ninth Schedule. A law declared unconstitutional for violation of fundamental rights gets "cured" of its defects when placed in the Ninth Schedule, it said in its written submission.

"Article 31-B is a constitutional mechanism for validating statutes, which have been struck down on the ground of violation of Part-III of the Constitution (which deals with Fundamental Rights)," it said.

It pointed out that Articles 31-A and 31-B, added by way of the Constitution (First Amendment) Act, 1951, empowered the legislature "to bring about the broader social equality even if it be at the expense of particular individual freedoms."

According to the Centre, mere infringement of fundamental rights or the broad doctrine of the Constitution's basic structure cannot be the test for judicial review.

"The correct test has to be that the Acts, which are included in the Ninth Scheduled can be judicially reviewed only if they damage or destroy that part of the fundamental rights, which form a part of the basic structure," it said. Any other view would render Article 31-B redundant.

One of the important laws under challenge is a Tamil Nadu law ensuring 69 per cent quota in government jobs and educational institutions.

It was enacted immediately after the apex court verdict in the Mandal case that put a ceiling of 50 per cent on reservations in jobs and placed the Ninth Schedule.

Several land reforms laws - including that of West Bengal are also under the Court's scanner.

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