Apex court to examine laws included after 1973
Power of judicial review can't be taken away Insertion means unlimited power to nullify fundamental rights
New Delhi: In a significant judgment, a nine-judge Bench of the Supreme Court on Thursday held that there could not be any blanket immunity from judicial review of laws inserted in the Ninth Schedule of the Constitution.
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 is not subject to judicial scrutiny.
Chief Justice Y.K. Sabharwal and Justices Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan, Altamas Kabir and D.K. Jain examined the validity of inclusion of several Central and State laws, including the Tamil Nadu Reservation Act providing for 69 per cent quota in jobs and in educational institutions.
The Bench, after examining the scope and powers of Parliament to enact laws and include them in the Ninth Schedule, held that the power of judicial review could not be taken away by putting a law under the Ninth Schedule.
The Ninth Schedule (Article 31-B) was introduced by the former Prime Minister Jawaharlal Nehru to keep certain laws particularly those on land reforms beyond the scope of judicial review. Over the years 284 laws were included in it and about 30 of them are under challenge.
In its unanimous verdict, the Bench, while recognising the supremacy of the court to examine the validity of inclusion of a law in the Ninth Schedule, did not accept the argument that introduction of Article 31-B was just a one-time measure to protect agrarian laws after the abolition of the zamindari system and that it outlived its purpose. The Bench did not go into the question of validity of Article 31-B as it was not under challenge.
"The power to grant absolute immunity at will is not compatible with the basic structure doctrine and, therefore, after April 24, 1973 the laws included in the Ninth Schedule would not have absolute immunity. The validity of such laws can be challenged on the touchstone of basic structure such as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles underlying these Articles."
No defined criterion
The Bench said, "Insertion in the Ninth Schedule is not controlled by any defined criteria or standards by which the exercise of power may be evaluated. The consequence of the insertion is that it nullifies entire Part III (relating to fundamental rights) of the Constitution. There is no constitutional control on such nullification. It means unlimited power to totally nullify Part III insofar as Ninth Schedule legislation are concerned. The supremacy of the Constitution mandates all constitutional bodies to comply with the provisions of the Constitution. It also mandates a mechanism for testing the validity of legislative acts through an independent organ, viz. the judiciary."
The Bench held that all such laws included in the Ninth Schedule after April 24, 1973 would be tested individually on the touchstone of violation of fundamental rights or the basic structure doctrine. The laws would be examined separately by a three-judge Bench and if these were found to violate the fundamental rights, abridge or abrogate any of the rights or protection granted to the people would be set aside.