July 31, 2021
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Judiciary V/s Legislature

The Supreme Court Rules

In a long over-due landmark ruling, a unanimous nine-judge bench of the Supreme Court rules that laws included in the IXth Schedule after April 24, 1973 are open to judicial scrutiny if the "basic structure" of the Constitution is at stake.

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The Supreme Court Rules
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A day after asserting in the MPs expulsion case that acts of Parliament are amenable to judicial scrutiny, the Supreme Court ruled 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.

"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 by a statute sought to be Constitutionally protected."

What is the Ninth Schedule?
The first amendment to the Constitution enacted in 1951 by the Nehru government introduced the Ninth Schedule to the Constitution through Article 31B. The intent was to insulate laws placed under this schedule from judicial scrutiny or review. It was necessitated because the land-reforms envisaged by the progressive legislature and executive to abolish the zamindari system clashed with the then fundamental right to property. In addition, another Constitutional provision, Article 31C was introduced to allow certain agrarian reforms.

The main object of the amendment via Article 31B was to fully secure the constitutional validity of Zamindari Abolition Laws in general and certain specified Acts in particular and save those provisions from the dilatory litigation which resulted in holding up the implementation of the social reform measures affecting large number of people.

So what was the dispute about now?
Because the provisions of Article 31B were hijacked by successive governments as an easy way out — in addition to the first 13 laws that all pertained to land-reforms, over the last 56 years the number of such laws has increased to as many as 284. The expedient politicos misused the Ninth Schedule to even smuggle in, for example, the 69% reservation in Tamil Nadu under the Ninth Schedule in 1994 to circumvent the Supreme Court ruling in the Mandal case which had fixed the overall ceiling of 50% for all reserved seats.

Why is it so much relevant now?
The issue is of immediate relevance because of the recent passing of laws seeking to extend reservations to the OBCs as also to the "creamy layer", despite clear Supreme Court rulings. In addition to laws on quotas and reservations, the ruling opens cases pertaining to land acquisition and even, for example, the proposed Delhi law to circumvent the courts' directives on sealing and demolitions.

Why the cut-off date of April 24, 1973?
The relevance of this date is for the reason that on this date judgment in His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kerala & Anr. [(1973) 4 SCC 225] was pronounced propounding the doctrine of Basic Structure of the Constitution to test the validity of constitutional amendments.

What has the Supreme Court ruled exactly?
The full text of the judgement is available from the bottom of this page, but briefly,

  • The laws placed in the Ninth Schedule have to adhere to the "basic structure doctrine" of the Constitution.
  • The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure
  • If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgment.

For a detailed elaboration of the above, please click here.

What are the reactions to this ruling?

Vikram Lal, President, Common Cause: It has vindicated our stand for which we had been fighting for. It will be a milestone in improving the way this country is governed. The Ninth Schedule and the immunity of the legislations under it were made necessary due to the difficult situation which the country faced during fifties, which are no more true these days. It was originally intended to clean the society of practises like zamindari system. It should be understood in the right perspective, the litigation was never intended for breeding a clash but for the greater good.

Ravi Shankar Prasad, spokesman, BJP: This is a welcome judgement. It will act as a restraint on placing laws that are vulnerable and unconstitutional under the Ninth Schedule. The Ninth Schedule should not be used as a shelter for such laws.

[Ironically, however, several BJP leaders in Delhi have been demanding that the law suspending court-ordered municipal drives against commercial establishments in residential zones of the capital be placed beyond judicial scrutiny]

Soli J. Sorabjee, former Attorney General: There is no ground for resentment for legislatures. It's nonsense. (That the judiciary was on a collision course with the legislature)

K.K. Venugopal, constitutional expert: The verdict should in no way be taken as a confrontation between the two organs of democracy. This decision is a continuity of yesterday's decision on the power of judicial review of the courts. Many of the laws would be rendered vulnerable because they would be open to challenge on ground of violation of fundamental rights enshrined in Article 14, 19 and 21 of the Constitution. Laws seeking to protect quotas would now also be open to challenge.

P.N. Lekhi, senior advocate: The so-called crisis vis-a-vis the judiciary versus legislature is a non-crisis and has been created by superficial media persons. By this judgement, he (Chief Justice Y K Sabharwal) has ensured his place in Indian legal history. Many laws that may face judicial scrutiny now have been put into the Ninth Schedule with a dishonest intention by populist leaders.

H.R. Bhardwaj, Union Law Minister: I feel they they (the Supreme Court) have upheld it (the power of judicial review) today also. If something happens against the basic features (of Constitution) or the fundamental rights then the the Supreme Court can strike it down. I think this (judgement) means this only. The judgement would have no adverse impact on the functioning of the executive. Those who were lamenting that the judiciary was interfering into the functioning of other organs of the state, were hailing the judgement on the MPs as a landmark judgement.

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