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9th Schedule open to review: SC

SC says laws that abridge or abolish basic rights resulting in violation of the Constitution, must be annulled, reports Satya Prakash. Speak up

india Updated: Jan 18, 2007 19:34 IST

Asserting its right to judge the validity of any law, the Supreme Court has ruled that Acts placed in the Ninth Schedule of the Constitution by the legislature -- to make them immune to challenge for violation of fundamental rights -- were open to judicial scrutiny.

A nine-judge constitution bench headed by Chief Justice YK Sabharwal delivered the historic verdict on Thursday. The bench said, "Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional amendments shall be a matter of Constitutional adjudication by examining the nature and extent of infraction of a Fundamental Right."

The ruling comes a day after the court held in the MPs' expulsion case that Parliament's power to take action against its members for misconduct was subject to judicial review.

The court said the authority to enact a law and decide the legality of the limitations cannot be vested in one organ. "The validity to the limitation on the rights in Part III (Fundamental Rights as given in the Constitution) can only be examined by another independent organ, namely, the judiciary."

The court, however, upheld the validity of Article 31-B of the Constitution, which empowers Parliament to place laws in the Ninth Schedule. But it said that even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack "on the ground that they destroy or damage the basic structure, if the Fundamental Rights are taken away or abrogated pertaining to the basic structure".

While upholding Parliament's power under Article 368 to amend the Constitution and place laws in the Ninth Schedule, the court said it was a limited power, which was subject to judicial review.

The judgment will have far-reaching consequences for the Indian polity as the Bench, for the first time said that Articles 15 and 16 of the Constitution (on reservation in educational institutions and government jobs respectively) were part of the "basic structure."

Another Constitution Bench had in October last ordered a 50 per cent ceiling on quota saying "a numerical benchmark is the surest immunity against charges of discrimination. If the extent of reservation goes beyond the cut-off point, then it results in reverse discrimination."

The government's move to provide 27 per cent reservation to Other Backward Classes in government-run educational institutions is already under challenge. Besides, the court has issued notice to the government on another petition challenging all kinds of reservation in government jobs, educational institutions, Parliament and state assemblies.

After this ruling, it will be difficult for the government to place any reservation law in the Ninth Schedule to save it from challenge in courts.

Deciding a reference made by a five-member constitution bench on the justiciability of laws placed in the Ninth Schedule, it held that any law placed in the Ninth Schedule after April 24, 1973 (when the Supreme Court propounded the basic structure doctrine in the Kesavananda Bharti's case) will be open to challenge.

The court said that if the validity of any Ninth Schedule law has already been upheld by the Supreme Court, "it would not be open to challenge such law again on the principles declared by this judgment".

The court clarified that all actions taken or transactions finalised as a result of the impugned Acts shall not be open to challenge.

Laying down the tests to be adopted to examine the validity of laws placed in the Ninth Schedule, the court said that firstly, it would have to be seen if the law in question violated any fundamental right. If yes, it will have to be examined if the violation of that particular fundamental right amounts to violation of the basic structure of the Constitution as well. It could be judged on the basis of the nature and degree of the rights violated and the impact of the law.

The Ninth Schedule, which was incorporated in 1951 by the First Amendment to the Constitution to protect land reforms laws, has about 284 laws under its umbrella, including a controversial Tamil Nadu law, which provides for 69 per cent reservation.

After laying down the law, the court directed that petitions challenging various laws under the Ninth Schedule be placed before a three-judge bench for adjudication.

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First Published: Jan 11, 2007 11:21 IST