Legal Correspondent

It will go into constitutional validity of 69 per cent quota

  • Constitution Bench will also examine inclusion in Ninth Schedule
  • Hearing for five days from October 9

    New Delhi: The Supreme Court will go into the constitutional validity of the Tamil Nadu Reservation Act providing for 69 per cent quota in educational institutions and employment.

    A nine-judge Constitution Bench will also examine the validity of the subsequent law enacted by Parliament to include the Act under the Ninth Schedule for taking away the court's power of judicial review. The Bench will hear a batch of petitions questioning Parliament's powers to enact laws and include them in the Ninth Schedule. It will examine whether an earlier five-judge Bench decision "that all Constitution amendments by which additions were made to the Ninth Schedule on or after April 24, 1973 [when judgment in the Kesavanand Bharti case was delivered] will be valid only if they do not damage or destroy the basic structure of the Constitution" is correct or not.

    The five-judges held that "in every case where a Constitution amendment includes a statute or statutes in the Ninth Schedule, its constitutional validity would have to be considered with reference to the basic structure doctrine."

    In another five-judge Bench judgment, it was held "what is a betrayal of the basic feature is not a mere violation of Article 14 [equality before law] but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a [piece of] legislation does go that far, it shakes the democratic foundation and must suffer the death penalty." In 1999 it was decided to refer to a nine-judge Bench the correctness of these decisions and subsequently many matters were referred to nine judges.

    On Wednesday, when these cases came up before a Bench comprising Chief Justice Y.K. Sabharwal, Justice C.K. Thakker and Justice P.K. Balasubramanyan, it was brought to the notice of the court that a reference to nine-judges was made as early as in 1999 and the matter was still pending consideration.

    Submissions

    Considering that important questions were raised in these petitions, the Bench asked the parties to file written submissions by September 27 and indicated that the matter would come up for hearing before a nine-judge Bench for five days from October 9.

    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 such a law is not subject to judicial review.

    The nine-judge Bench will examine the validity of the inclusion of legislation including those relating to land reforms.

    Following the apex court ruling in the Mandal case that total reservation shall not exceed 50 per cent, the Tamil Nadu Government enacted the TN Backward Classes, Schedule Caste and Schedule Tribe (reservation of seats in educational institutions and of appointments or posts in the services under the State) Act in 1993 and in 1994 it was put under the 9th Schedule.

    The grounds on which the matter was referred to nine judges were: "Judicial review is a basic feature of the Constitution; to insert in 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."