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Constitution Bench hearing from tomorrow

Legal Correspondent

On Parliament's powers to keep laws beyond judicial review

Centre: Parliament has absolute power Tamil Nadu: Mandal case ceiling will not apply to us

New Delhi: The Supreme Court will hear from October 30 a batch of petitions on the scope and powers of Parliament to enact laws and include them in the Ninth Schedule of the Constitution to keep them beyond judicial review.

A nine-judge Constitution Bench will also examine the constitutional validity of the Tamil Nadu Act providing for 69 per cent reservation in educational institutions and employment and its inclusion in the Ninth Schedule.

Once a law is enacted and included in the Ninth Schedule, it gets protection under Article 31-B (validation of certain Acts and Regulations) and it is not subject to judicial review.

The Bench will examine the validity of inclusion of several legislation including those on land reforms and other issues in the Schedule. Following the apex court ruling in the Mandal case that the total reservation should not exceed 50 per cent, the Tamil Nadu Government enacted the TN Backward Classes, Scheduled Caste and Scheduled Tribe (reservation of seats in educational institutions and of appointments or posts in services under the State) Act in 1993 and in 1994 it was put in the Ninth Schedule.

Why reference

The grounds on which the matter was referred to nine judges in 1999 were: "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. To insert into the Ninth Schedule after April 24, 1973 an Act, which, or part of which, has been struck down as being violative of the fundamental rights conferred under the Constitution is to destroy or damage its basic structure."

Absolute power

Defending Parliament's powers, the Centre, in its affidavit, asserted that the House had absolute power to include any law in the Ninth Schedule and said no further examination of the issue was necessary as the law was well settled in the Keshavanand Bharti case judgment.

The object of introducing Article 31-B was to achieve social equality. "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 the Constitution is changed; in fact it is made stronger."

Citing historical reasons, Tamil Nadu, in its affidavit, defended the enactment of the 69 per cent quota law. It maintained that the ruling on the ceiling as per the Mandal judgment would not apply to Tamil Nadu.

Prescribing a rigid 50 per cent ceiling in reservation would be contrary to the very spirit of the Constitution and its objectives.

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