Can a law be declared unconstitutional by the Supreme Court or a High Court be revived by simply putting it in the Ninth Schedule of the Constitution?
This was the question posed by a nine-judge Constitution Bench headed by Chief Justice YK Sabharwal, which is hearing 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.
Maintaining that it was the court's duty to interpret a law to give it a proper meaning and determine its validity by examining whether it conformed to the provisions of the Constitution, particularly the fundamental rights, the Bench wondered if Parliament could take away this prerogative.
The court's queries are bound to put in a tight spot the UPA government, which has defended Parliament's right to take recourse to the Ninth Schedule.
In its affidavit filed in the court, it has asserted that a law declared unconstitutional for violation of fundamental rights gets "cured" of its defects when placed in the Ninth Schedule.
Political parties, including UPA constituents, have demanded a law to reverse the latest SC verdict to exclude the creamy layer among SCs/STs from the purview of quota in government jobs.
Government also proposed to place in the Ninth Schedule the controversial Delhi law declaring one-year moratorium on sealing and demolition in the capital.
The Bench, also comprising Justices Ashok Bhan, Arijit Pasayat, BP Singh, SH Kapadia, CK Thakker, PK Balasubramanyan, Altmas Kabir and DK Jain, talked of separation of power between the Legislature, the Executive and the Judiciary under the constitution, which assigned specific role to each of them.
The observations were prompted by senior counsel Fali S Nariman, who opened arguments on behalf of the petitioners, saying Parliament cannot revive a dead law, i.e. a law struck down as unconstitutional, by inserting it in the Ninth Schedule. "Reviving a dead body happens only in Christian theology," he added.
Nariman explained the historical background in which Article 31-B of the Constitution, which along with the Ninth Scheduled provided a protective umbrella to laws from being declared as invalid on the ground of violation of fundamental rights, came into existence. It was brought mainly to save land reforms laws, he said.
While introducing the Constitution First Amendment, which added Article 31-B to the Constitution, the then Prime Minister Jawaharlal Nehru had assured the House that the list of 13 laws proposed to be placed in the Ninth Schedule would not be increased, he said.
The number has since gone up to 300 and all sorts of laws have been being placed under it, he pointed out.
The senior counsel submitted that Article 31-B has outlived its utility and it was no more needed.
Nariman said after the Supreme Court propounded the doctrine of "basic structure" in Keshwanand Bharati's case on April 24, 1973 any law completely taking away the courts' power of judicial review was invalid, as judicial review was part of the "basic structure" of the Constitution.
Nariman, however, clarified that it might happen that on examination of many of the laws are found to be valid and the state officials made a case for putting them in the Ninth Schedule due to "non application of mind".
Pointing out that the Judiciary has never gone berserk so as to declare a large number of laws to be invalid, he said the politicians' fear was not well founded.
"Politicians are bound to act politically but the court must act judicially," he said.
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