M J Antony: The Ninth Schedule to counter activism

OUT OF COURT

The validity of this immunity provision will soon be tested by the Supreme Court.

The Supreme Court has given the law-makers and the executive several reasons in recent months to think of ways to get around inconvenient orders. The making of the Jharkhand government, the on-and-off course of bulldozers in the capital and the turbulence over the creamy layer judgement are a few of them. It has been found that making a law to unmake the judgement is not practical, as the new law itself may be declared unlawful.

Therefore, there is now talk of a new route to bar judicial review in sensitive matters. The method is to pass a law to overcome the judicial pronouncement concerned and include it in the Ninth Schedule of the Constitution. Once the law is safely ensconced there, the judiciary is supposed to keep its hands off. Thus, the government will be free to pass any law with regard to reservation for the backward classes or changes in the city master plans.

This provision in the Constitution was introduced in 1951 by the very first amendment following certain Supreme Court judgements. One was about communal reservations and another concerned land reforms. The court struck down both. The law-makers were furious. No less than a person like Nehru stated thus in Parliament: "Within limits, no judge and no Supreme Court can make itself a third chamber. No Supreme Court and no judiciary can stand in judgement over the sovereign will of Parliament representing the will of the entire community. If we go wrong here and there it can point it out, but in the ultimate analysis where the future of the community is concerned, no judiciary can come in the way."

The Ninth Schedule started with 13 enactments, mainly concerned with land reforms, but now it has a long list of 284 legislations passed by the Central and state governments. Many of them violate women's right to property, and several are not concerned with land reforms at all, the original excuse for the insertion of Article 31-B in the Constitution. All these laws have been rendered immune from judicial review by the legislative sleight of hand.

However, a nine-judge Constitution bench is scheduled to test the validity of the immunity provision soon in a batch of cases referring to reservations in employment and admissions and other fields of fundamental rights. The main argument is that the provision is against the basic structure of the Constitution as it takes away the principle of judicial review.

The government, on the other hand, insists that once a piece of legislation is included in the Ninth Schedule of the Constitution, it gets protection and the scope for judicial review of such law and its inclusion is very limited. The government has stated so in its affidavit filed recently in the Supreme Court, which is about to start hearing the validity of the inclusion of the Tamil Nadu Reservation Act and several other state and Central legislations in the Ninth Schedule.

An earlier five-judge bench had stated that all Constitution amendments by which additions were made to the Ninth Schedule on or after April 24, 1973 (when the judgement in the Keshavanand Bharti case was delivered) will be valid only if they do not damage or destroy the basic structure of the Constitution. The bench referred the question to a larger bench in 1999 on the following ground: "Judicial review is a basic feature of the Constitution; to insert into 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."

According to the Central government, no further examination of the issue is necessary. The object of introducing Article 31-B was to achieve the constitutional objective of social equality. "A Legislature must have the power to bring about 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."

Though it took more than four decades to test the validity of such a vital amendment to the Constitution, the effort would be worthwhile because the governments are bent on protecting their laws purporting to protect social equality and justice. On the other hand, curtailing the power of judicial review would lobotomise the courts and the Constitution.