The Supreme Court on Wednesday termed as a “fraud on the Constitution” the placing in the Ninth Schedule of a Tamil Nadu law providing for 69 per cent reservation in government jobs and educational institutions as it violated the 50 per cent cap declared by it in the Mandal case.
During submissions by Solicitor General GE Vahanvati before a nine-judge Constitution Bench, Chief Justice YK Sabharwal sought to know how could the law violating the Supreme Court ruling in the Mandal case be enacted and then placed in the Ninth Schedule to save it from judicial review.
As Vahanvati submitted that there was no complete exclusion of judicial review and that the law was open to challenge on the ground of violation of basic structure doctrine, Justice Arijit Pasayat said it was a “fraud on the Constitution.”
Vahanvati sought to distance himself from the Tamil Nadu law but said its validity can be challenged for violating the essence of equality which formed part of the basic structure of the Constitution.
In fact the proceeding was dominated by the issue of reservation and Vahanvati had to face a volley of questions including those on various aspects of Article 31-B, Ninth Schedule and fundamental rights.
The CJI said Article 31-B was added to the Constitution in 1951 and upheld in 1973 but now it has to be examined in the present day context.
Petitioners have contended that Article 31-B was a one-time exercise which was undertaken to save certain land reform laws from being declared invalid on the ground of violation of fundamental rights and that it cannot be used for inclusion of other laws in the Ninth Schedule.
However, on behalf of the Centre, Vahanvati submitted that it was not a one-time exercise and all sorts of laws can enjoy the protective umbrella of the Ninth Schedule.
Describing it as a “curing device”, he said once placed in the Ninth Schedule, a law declared unconstitutional is cured of its defects.
On the court’s queries about exclusion of judicial review, he sought to emphasize that there was no complete exclusion of judicial review. It was limited to the basic structure test as laid down in the Keshwanand Bharati vase, he said.
The Bench, which had earlier sought to know if a law declared unconstitutional by it could be revived by simply putting it in the Ninth Schedule, asked what will happen if Parliament enacted a law violating fundamental rights as a whole and put it in the Ninth Schedule.
“We will assume that Parliament acts with responsibility. We have to assume it,” the Solicitor General said emphatically. Before concluding his arguments, he, however, admitted in a lighter vein that he was facing turbulence.
Appearing for Tamil Nadu, senior counsel Soli J Sorabji submitted that no fetters can be imposed on Parliament’s powers to place a law in the Ninth Schedule. The hearing will continue on Thursday.
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