The Supreme Court would have a fresh look on October 30 at the scope and powers of Parliament to include a law in the constitution even after the court strikes down such legislation.
The court would examine the validity of constitution amendments by which additions were made to the Ninth Schedule on or after April 24, 1973 (when judgment in the Kesavanand Bharati case was delivered) if they do not damage or destroy the basic structure of the constitution.
The hearing by a nine-judge bench is a sequel to a reference made in 1999 by a five-judge bench.
The grounds on which the matter was referred were "judicial review is a basic feature of the constitution; to insert in the Ninth Schedule an act which, or part of which, has been struck down as unconstitutional in exercise of the power of judicial review is to destroy the basic structure of the constitution".
Once legislation is included in the Ninth Schedule of the constitution - Article 31-B (validation of certain Acts and Regulations) - it gets protection and the scope of judicial review of such law and its inclusion is very limited.
The court is to examine the validity of the inclusion of the Tamil Nadu Reservation Act and several other state and central legislation in the Ninth Schedule.
Asserting that Parliament had absolute power to include any law in the Ninth Schedule, the central government in its affidavit said no further examination of the issue was necessary as the law was well settled in the Keshavanand Bharati judgment.
The Kesavanand Bharati case was decided by 13 Supreme Court judges. The court by a majority of seven to six held that Parliament had the powers to amend fundamental rights.
The government said the object of introducing Article 31-B was to achieve the constitutional objectives of social equality.
It said: "A legislature must have the power to bring about the broader social equality even if it be at the expense of particular individual freedoms. Otherwise, the state fails to do what it has been commanded to do by the constitution. This does not mean that the constitution is changed; in fact it is made stronger."
The government said Article 31-B was a protective umbrella to all acts "which are included in the Ninth Schedule, no matter of what character, kind or category they may be. Article 31-B empowers Parliament to include in the Ninth Schedule such laws as it considers fit and proper to include therein."
It said when a statute is included in the Ninth Schedule, the vice or the defect of unconstitutionality of the legislation on the ground of infringement of fundamental rights is cured. "There is no necessity of a separate validating act taking away the basis of the judgment before the act is put in the Ninth Schedule."