Ninth Schedule Review

01-11-2007, 10:23 PM

So when is the first challenge coming????

QUOTENo immunity for laws under Ninth Schedule: SCÂ

PTI | New Delhi

In a landmark judgment with far reaching implications, the Supreme Court today ruled that any law placed under the Constitution's Ninth Schedule after April 24, 1973 providing immunity from legal challenges are subject to scrutiny of courts if they violated fundamental rights.

In a unanimous verdict, a nine-member Constitution Bench headed by Chief Justice YK Sabharwal rejected Government's claim that certain laws even if they infringed the fundamental rights of citizens cannot be subjected to judicial review, if the legislations were placed under the Ninth Schedule.

The judgement, which came a day after apex court ruled that Parliament's decisions were subject to judicial review, assumes significance in the wake of laws like the one in Tamil Nadu which provides 69 percent reservations and has placed it under the Ninth Schedule to circumvent judicial review.

The apex court had earlier held that social reservations should under no circumstances exceed the permissible limit of 50 per cent. To overcome the ruling, the then Jayalalithaa government placed the law under the Schedule.

Several other states had come out with their own laws on land reforms, land ceilings and other local legislations purportedly infringing upon the fundamental rights and had put them under the Ninth Schedule to avoid judicial scrutiny.

01-11-2007, 10:31 PM

the following can be challenged

QUOTENINTH SCHEDULE
(Article 31B)
67. The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (Andhra Pradesh Act 1 of 1973).
69. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1973 (Bihar Act IX of 1973).
71. The Gujarat Agricultural Lands Ceiling (Amendment) Act, 1972 (Gujarat Act 2 of 1974).
73. The Himachal Pradesh Ceiling on Land Holdings Act, 1972 (Himachal Pradesh Act 19 of 1973).
75. The Madhya Pradesh Ceiling on Agricultural Holdings (Amendment) Act, 1972 (Madhya Pradesh Act 12 of 1974).
76. The Madhya Pradesh Ceiling on Agricultural Holdings (Second Amendment) Act, 1972 (Madhya Pradesh Act 13 of 1974).
77. The Mysore Land Reforms (Amendment) Act, 1973 (Karnataka Act 1 of 1974).
78. The Punjab Land Reforms Act, 1972 (Punjab Act 10 of 1973).
79. The Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (Rajasthan Act 11 of 1973).
83. The West Bengal Estates Acquisition (Second Amendment) Act, 1973 (West Bengal Act XXXIII of 1973).
84. The Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1972 (Gujarat Act 5 of 1973).
85. The Orissa Land Reforms (Amendment) Act, 1974 (Orissa Act 9 of 1974).
86. The Tripura Land Revenue and Land Reforms (Second Amendment) Act,1974 (Tripura Act 7 of 1974).
*Â Â Â Â Â Â Â Â Â Â Â *Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â *Â Â Â Â Â Â Â Â Â Â Â Â *Â Â Â Â Â Â Â Â Â Â *
93. The Coking Coal Mines (Emergency Provisions) Act, 1971 (Central Act 64 of 1971).
98. The Coal Mines (Taking Over of Management) Act, 1973 (Central Act 15 of 1973).
99. The Coal Mines (Nationalisation) Act, 1973 (Central Act 26 of 1973).
100. The Foreign Exchange Regulation Act, 1973 (Central Act 46 of 1973).
101. The Alcock Ashdown Company Limited (Acquisition of Undertakings) Act, 1973 (Central Act 56 of 1973).
102. The Coal Mines (Conservation and Development) Act, 1974 (Central Act 28 of 1974).
103. The Additional Emoluments (Compulsory Deposit) Act, 1974 (Central Act 37 of 1974).
104. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974).
105. The Sick Textile Undertakings (Nationalisation) Act, 1974 (Central Act 57 of 1974).
114. The Maharashtra Agricultural Lands (Ceiling on Holdings) (Amendment) Act, 1973 (Maharashtra Act L of 1973).
120. The Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 (Uttar PradeshÂ Act 18 of 1973).
121. The Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1974 (Uttar PradeshÂ Act 2 of 1975).
122. The Tripura Land Revenue and Land ReformsÂ (Third Amendment) Act, 1975 (Tripura Act 3 of 1975).
124. The Dadra and Nagar Haveli Land Reforms (Amendment)Â Regulation, 1973 (5 of 1973).
127. The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (Central Act 13 of 1976).
128. The Bonded Labour System (Abolition) Act, 1976 (Central Act 19 of 1976).
129. The Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1976 (Central Act 20 of 1976).
*Â *Â Â Â Â Â Â *Â Â Â Â *Â *
131. The Levy Sugar Price Equalisation Fund Act, 1976 (Central Act 31 of 1976).
132. The Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976).
133. The Departmentalisation of Union Accounts (Transfer of Personnel) Act, 1976 (Central Act 59 of 1976).
136. The Gujarat Private Forests (Acquisition) Act, 1972 (Gujarat Act 14 of 1973).
137. The Haryana Ceiling on Land Holdings (Amendment) Act, 1976 (Haryana Act 17 of 1976).
138. The Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Himachal Pradesh Act 8 of 1974).
139. The Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 (Himachal Pradesh Act 18 of 1974).
140. The Karnataka Land Reforms (Second Amendment and Miscellaneous Provisions) Act, 1974 (Karnataka Act 31 of 1974).
141. The Karnataka Land Reforms (Second Amendment) Act, 1976 (Karnataka Act 27 of 1976).
147. The Kerala Agricultural Workers Act, 1974 (Kerala Act 18 of 1974).
148. The Kerala Cashew Factories (Acquisition) Act, 1974 (Kerala Act 29 of 1974).
149. The Kerala Chitties Act, 1975 (Kerala Act 23 of 1975).
150. The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (Kerala Act 31 of 1975).
151.Â The Kerala Land Reforms (Amendment) Act, 1976 (Kerala Act 15 of 1976).
152. The Kanam Tenancy Abolition Act, 1976 (Kerala Act 16 of 1976).
153. The Madhya Pradesh Ceiling on Agricultural Holdings (Amendment) Act, 1974 (Madhya Pradesh Act 20 of 1974).
154. The Madhya Pradesh Ceiling on Agricultural HoldingsÂ (Amendment) Act, 1975 (Madhya Pradesh Act 2 of 1976).
156. The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (Maharashtra Act XIV of 1975).
157. The Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act, 1972 (Maharashtra Act XXI of 1975).
158. The Maharashtra Private Forest (Acquisition) Act, 1975 (Maharashtra Act XXIX of 1975).
159. The Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Amendment Act, 1975 (Maharashtra Act XLVII of 1975).
160. The Maharashtra Agricultural Lands (Ceiling on Holdings) (Amendment) Act, 1975 (Maharashtra Act II of 1976).
164. The Rajasthan Imposition of Ceiling on Agricultural Holdings (Amendment) Act, 1976 (Rajasthan Act 8 of 1976).
165. The Rajasthan Tenancy (Amendment) Act, 1976 (Rajasthan Act 12 of 1976).
172. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Sixth Amendment Act, 1972 (Tamil Nadu Act 7 of 1974).
173. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Fifth Amendment Act, 1972 (Tamil Nadu Act 10 of 1974).
174. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment Act, 1974 (Tamil Nadu Act 15 of 1974).
175. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Third Amendment Act, 1974 (Tamil Nadu Act 30 of 1974).
176. The Tamil NaduÂ Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1974 (Tamil Nadu Act 32 of 1974).
177. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment Act, 1975 (Tamil Nadu Act 11 of 1975).
178. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1975 (Tamil Nadu Act 21 of 1975).
179. Amendments made to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (Uttar Pradesh Act I of 1951) by the Uttar Pradesh Land Laws (Amendment) Act, 1971 (Uttar Pradesh Act 21 of 1971) and the Uttar Pradesh Land Laws (Amendment) Act, 1974 (Uttar Pradesh Act 34 of 1974).
180. The Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1976 (Uttar Pradesh Act 20 of 1976).
182. The West Bengal Restoration of Alienated Land Act, 1973 (West Bengal Act XXIII of 1973).
183. The West Bengal Land Reforms (Amendment) Act, 1974 (West Bengal Act XXXIII of 1974).
184. The West Bengal Land Reforms (Amendment) Act, 1975 (West Bengal Act XXIII of 1975).
185. The West Bengal Land Reforms (Amendment) Act, 1976 (West Bengal Act XII of 1976).
186. The Delhi Land Holdings (Ceiling) Amendment Act, 1976 (Central Act 15 of 1976).
187. The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (Goa, Daman and Diu Act 1 of 1976).
188. The Pondicherry Land Reforms (Fixation of Ceiling on Land) Act, 1973 (Pondicherry Act 9 of 1974).
190. The Assam (Temporarily Settled Areas) Tenancy (Amendment) Act, 1974 (Assam Act XVIII of 1974).
191. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Amending Act, 1974 (Bihar Act 13 of 1975).
192. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1976 (Bihar Act 22 of 1976).
193. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1978 (Bihar Act VII of 1978).
194. The Land Acquisition (Bihar Amendment) Act, 1979 (Bihar Act 2 of 1980).
195. The Haryana Ceiling on Land Holdings (Amendment) Act, 1977 (Haryana Act 14 of 1977).
196. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment Act, 1978 (Tamil Nadu Act 25 of 1978).
197. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment Act, 1979 (Tamil Nadu Act 11 of 1979).
198. The Uttar Pradesh Zamindari Abolition Laws (Amendment) Act, 1978
(Uttar Pradesh Act 15 of 1978).
199. The West Bengal Restoration of Alienated Land (Amendment) Act, 1978 (West Bengal Act XXIV of 1978).
200. The West Bengal Restoration of Alienated Land (Amendment) Act, 1980 (West Bengal Act LVI of 1980).
202. The Goa, Daman and Diu Agricultural Tenancy (Fifth Amendment) Act, 1976 (Goa, Daman and Diu Act 17 of 1976).
207. The Andhra Pradesh Scheduled Areas Land Transfer (Amendment) Regulation, 1978 (Andhra Pradesh Regulation 1 of 1978).
212. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1982 (Bihar Act 55 of 1982).
214. The Gujarat Tenancy Laws (Amendment) Act, 1976 (Gujarat Act 37 of 1976).
215. The Gujarat Agricultural Lands Ceiling (Amendment) Act, 1976 (President's Act 43 of 1976).
216. The Gujarat Devasthan Inams Abolition (Amendment) Act, 1977 (Gujarat Act 27 of 1977).
217. The Gujarat Tenancy Laws (Amendment) Act, 1977 (Gujarat Act 30 of 1977).
218. The Bombay Land Revenue (Gujarat Second Amendment) Act, 1980 (Gujarat Act 37 of 1980).
219. The Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Act, 1982 (Gujarat Act 8 of 1982).
220. The Himachal Pradesh Transfer of Land (Regulation) Act, 1968
(Himachal Pradesh Act 15 of 1969).
221. The Himchal Pradesh Transfer of Land (Regulation) (Amendment) Act, 1986 (Himachal Pradesh Act 16 of 1986).
222. The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (Karnataka Act 2 of 1979).
223. The Kerala Land Reforms (Amendment) Act, 1978 (Kerala Act 13 of 1978).
224. The Kerala Land Reforms (Amendment) Act, 1981 (Kerala Act 19 of 1981).
225. The Madhya Pradesh Land Revenue Code (Third Amendment) Act, 1976 (Madhya Pradesh Act 61 of 1976).
226. The Madhya Pradesh Land Revenue Code (Amendment) Act, 1980
(Madhya Pradesh Act 15 of 1980).
227. The Madhya Pradesh Akrishik Jot Uchchatam Seema Adhiniyam, 1981
(Madhya Pradesh Act 11 of 1981).
228. The Madhya Pradesh Ceiling on Agricultural Holdings (Second Amendment) Act, 1976 (Madhya Pradesh Act 1 of 1984).
229. The Madhya Pradesh Ceiling on Agricultural Holdings (Amendment) Act, 1984 (Madhya Pradesh Act 14 of 1984).
230. The Madhya Pradesh Ceiling on Agricultural Holdings (Amendment) Act, 1989 (Madhya Pradesh Act 8 of 1989).
231. The Maharashtra Land Revenue Code, 1966 (Maharashtra Act 41 of 1966), sections 36, 36A and 36B.
232. The Maharashtra Land Revenue Code and the Maharashtra Restoration of Lands to Scheduled Tribes (Second Amendment) Act, 1976 (Maharashtra Act 30 of 1977).
233. The Maharashtra Abolition of Subsisting Proprietary Rights to Mines and Minerals in certain Lands Act, 1985 (Maharashtra Act 16 of 1985).
234. The Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956 (Orissa Regulation 2 of 1956).
235. The Orissa Land Reforms (Second Amendment) Act, 1975 (Orissa Act 29 of 1976).
236. The Orissa Land Reforms (Amendment) Act, 1976 (Orissa Act 30 of 1976).
237. The Orissa Land Reforms (Second Amendment) Act, 1976 (Orissa Act 44 of 1976).
238. The Rajasthan Colonisation (Amendment) Act, 1984 (Rajasthan Act 12 of 1984).
239. The Rajasthan Tenancy (Amendment) Act, 1984 (Rajasthan Act 13 of 1984).
240. The Rajasthan Tenancy (Amendment) Act, 1987 (Rajasthan Act 21 of 1987).
241. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1979 (Tamil Nadu Act 8 of 1980).
242. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment Act, 1980 (Tamil Nadu Act 21 of 1980).
243. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment Act, 1981 (Tamil Nadu Act 59 of 1981).
244. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1983 (Tamil Nadu Act 2 of 1984).
245. The Uttar Pradesh Land Laws (Amendment) Act, 1982 (Uttar Pradesh Act 20 of 1982).
249. The West Bengal Estate Acquisition (Amendment) Act, 1977 (West Bengal Act 36 of 1977).
250. The West Bengal Land Holding Revenue Act, 1979 (West Bengal Act 44 of 1979).
251. The West Bengal Land Reforms (Amendment) Act, 1980 (West Bengal Act 41 of 1980).
252. The West Bengal Land Holding Revenue (Amendment) Act, 1981 (West Bengal Act 33 of 1981).
253. The Calcutta Thikka Tenancy (Acquisition and Regulation) Act, 1981
(West Bengal Act 37 of 1981).
254. The West Bengal Land Holding Revenue (Amendment) Act, 1982
(West Bengal Act 23 of 1982).
255. The Calcutta Thikka Tenancy (Acquisition and Regulation) (Amendment) Act, 1984 (West Bengal Act 41 of 1984).
257. The Mahe Land Reforms (Amendment) Act, 1980 (Pondicherry Act 1 of 1981).
257A. The Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of appointments or posts in the Services under the State) Act, 1993 (Tamil Nadu Act 45 of 1994).258. The Bihar Privileged Persons Homestead Tenancy Act, 1947 (Bihar Act 4
of 1948).
262. The Bihar Consolidation of Holdings and Prevention of Fragmentation (Amendment) Act, 1973 (Bihar Act 27 of 1975).
263. The Bihar Consolidation of Holdings and Prevention of Fragmentation (Amendment) Act, 1981 (Bihar Act 35 of 1982).
264. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1987 (Bihar Act 21 of 1987).
265. The Bihar Privileged Persons Homestead Tenancy (Amendment) Act, 1989 (Bihar Act 11 of 1989).
266. The Bihar Land Reforms (Amendment) Act, 1989 (Bihar Act 11 of 1990).
267. The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) (Amendment) Act, 1984 (Karnataka Act 3 of 1984).
268. The Kerala Land Reforms (Amendment) Act, 1989 (Kerala Act 16 of 1989).
269. The Kerala Land Reforms (Second Amendment) Act, 1989 (Kerala Act 2 of 1990).
270. The Orissa Land Reforms (Amendment) Act, 1989 (Orissa Act 9 of 1990).
271. The Rajasthan Tenancy (Amendment) Act, 1979 (Rajasthan Act 16 of 1979).
272. The Rajasthan Colonisation (Amendment) Act, 1987 (Rajasthan Act 2 of 1987).
273. The Rajasthan Colonisation (Amendment) Act, 1989 (Rajasthan Act 12 of 1989).
274. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment Act, 1983 (Tamil Nadu Act 3 of 1984).
275. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment Act, 1986 (Tamil Nadu Act 57 of 1986).
276. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1987 (Tamil Nadu Act 4 of 1988).
277. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment (Amendment) Act, 1989 (Tamil Nadu Act 30 of 1989).
278. The West Bengal Land Reforms (Amendment) Act, 1981 (West Bengal Act 50 of 1981).
279. The West Bengal Land Reforms (Amendment) Act, 1986 (West Bengal Act 5 of 1986).
280. The West Bengal Land Reforms (Second Amendment) Act, 1986 (West Bengal Act 19 of 1986).
281. The West Bengal Land Reforms (Third Amendment) Act, 1986 (West Bengal Act 35 of 1986).
282. The West Bengal Land Reforms (Amendment) Act, 1989 (West Bengal Act 23 of 1989).
283. The West Bengal Land Reforms (Amendment) Act, 1990 (West Bengal Act 24 of 1990).
284. The West Bengal Land Reforms Tribunal Act, 1991 (West Bengal Act 12 of 1991).
Explanation.âAnyÂ acquisition made under the Rajasthan Tenancy Act, 1955 (Rajasthan Act III of 1955), in contravention of the second proviso to clause (1) of article 31A shall, to the extent of the contravention, be void.

01-12-2007, 01:34 AM

more details and what it mean -
QUOTEJudiciary declares its supremacy 
Pioneer.com
Abraham Thomas | New Delhi
Govt can no longer seek immunity under Ninth Schedule: SC
Continuing to make incursion into legislative territory, the Supreme Court on Monday declared that laws under the Ninth Schedule will be open to judicial scrutiny if they violate fundamental rights, which are the "heart and soul" of the Constitution.Â

This judgement is unprecedented in two respects. One, it allows a free hand to the judiciary to examine a vast range of laws, which enjoyed immunity under Ninth Schedule. Earlier, under Article 31B, the court had limited powers to examine laws which violated the basic structure of the Constitution. Article 31B formed the basis of Ninth Schedule and granted protective cover to laws from judicial scrutiny.

Second, the court held that fundamental right of equality, as a part of the basic structure of Constitution, will include Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and Article 16 (equality of opportunity in matters of public employment). This implies that the Government will have to adequately justify its laws providing reservation to any particular caste or religion without getting the benefit of absolute immunity, by conveniently placing it under Ninth Schedule.

The decision pronounced by a Constitution Bench comprising nine judges was headed by Chief Justice YK Sabharwal, after a reference received from a five-judge Bench set apart to consider the validity of laws under the Ninth Schedule. Ambiguity prevailed due to certain past judgements of the Supreme Court upholding the First Amendment of 1951 introducing Article 31B which provided for the Ninth Schedule. Under it, any Act or regulation automatically assumes validity and cannot be struck down for violation of fundamental rights. Further, these Acts could not be challenged in any court of law.

Initially, the Government's action was upheld since only land reform laws got included in the Schedule. But over the years, the number of laws under the Schedule increased from 13 to a whopping 284.

Noting this dangerous trend, the Bench noted, "The absence of guidelines for exercise of such power means the absence of constitutional control which results in destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full power of judicial review to determine the constitutional validity of such exercise."

On April 24, 1973, a 13-judge Bench of the Supreme Court tackled the issue by declaring that any law under Ninth Schedule can be held invalid on the "touchstone of basic structure". Treating this to be the cut-off date, the Bench held, "Article 31B after April 24, 1973, despite its wide language cannot confer unlimited or unregulated immunity." The Bench declared that since this date, all Acts/regulations included under Ninth Schedule would be open to scrutiny in courts, except those which have been validated in the past by the court.

Justifying judicial intervention, the Bench questioned how Parliament, which enacts laws, be made to justify its own laws. Offering sufficient reasons, it said, "The existence of the power of Parliament to amend the Constitution at will, with requisite voting strength, so as to make any kind of laws that excludes Part III, including power of judicial review under Article 32, is incompatible with the basic structure doctrine." Thus, once Article 32 (remedy to enforce rights through Supreme Court) is triggered, every addition to the Schedule must answer to the complete test of fundamental rights.

Therefore, it concluded, "Such exercise, if challenged, has to be tested on the touchstone of basic structure as reflected in Article 21 (Right to life) read with Article 14 (Right to equality) and Article 19 (free speech and expression), Article 15 (Right against discrimination) and the principles thereunder."

Rejecting the "fictional immunity" offered under Article 31B, the court made it clear that such Acts will have to stand the scrutiny of violation of fundamental rights, and further whether this violation is destructive of the basic structure doctrine. "The basic structure doctrine requires the State to justify the degree of invasion of fundamental rights," the Bench said, adding, "The greater the invasion into essential freedoms, greater is the need for justification and determination by court whether invasion was necessary and if so, to what extent."

In deciding this degree of invasion on the fundamental right, the test by court would involve "essence or principle of the right or nature of violation," to determine its impact on the basic structure of the Constitution.

The order has given a blow to the plans by the Centre to place the controversial quota Bill providing 27 per cent reservation for OBCs in educational institutions. Further proposals were in pipeline to incorporate the sealing law, Delhi (Special Provisions) Act, 2006 under the Schedule too. The Centre had all along maintained that in view of the "protective umbrella" offered under Article 31B, challenge to laws under the Schedule can be based on basic structure doctrine, besides, "lack of legislative competence" and "violation of other constitutional provisions".

The court while disposing the reference, directed a three-judge Bench to dispose the cases pending before it on this issue.

Judiciary Versus Legislature 

Unprecedented, unanimous verdict to have far reaching implications

Laws placed under Ninth Schedule after April 24, 1973 will be open to challenge in court if they violate fundamental rights

Verdict a blow to Centre's plans to place controversial law providing 27 per cent reservation for OBCs in educational institutions in 9th Schedule

Immediate fallout likely on Tamil Nadu law that provides 69 per cent quota and remained shielded from judicial scrutiny under Ninth Schedule

Proposals in pipeline include sealing law, Delhi (Special Provisions) Act, 2006

01-12-2007, 04:52 AM

As guroos in this forum have predicted the SC review of ninth schedule is done. This one is HUUUUGE and deserves its own thread.

http://www.rediff.com/news/2007/jan/11law.htm

QUOTELaws violating Constitution's framework open to review: SC

January 11, 2007 11:25 IST
Last Updated: January 11, 2007 16:11 IST

In a landmark judgment with far reaching implications, the Supreme Court on Thursday ruled that any law placed under the Constitution's Ninth Schedule after April 24, 1973, providing immunity from legal challenges are subject to scrutiny of courts if they violated fundamental rights.

In an unanimous verdict, a nine-member Constitution bench headed by Chief Justice Y K Sabharwal rejected the government's claim that certain laws, even if they infringed the fundamental rights of citizens, cannot be subjected to judicial review, if the legislations were placed under the Ninth Schedule.

The judgment, which came a day after apex court ruled that Parliament's decisions were subject to judicial review, assumes significance in the wake of laws like the one in Tamil Nadu, which provides 69 per cent reservations, and has placed the law under the Ninth Schedule to circumvent judicial review.

The apex court had earlier held that social reservations shall under no circumstances exceed the permissible limit of 50 per cent.

To overcome the ruling, the then Jayalalithaa government placed the law under the Schedule.

Several other states had come out with their own laws on land reforms, land ceilings and other local legislations purportedly infringing upon fundamental rights, and had put them under the Ninth Schedule to avoid judicial scrutiny.

The ruling could affect over 250 legislations enacted by the Centre and various states, and put under the Schedule.

These include Central Coal Mines Act 1974, Additional Emoluments Act 1974, COFEPOSA Act 1974, Sick Textile
Undertaking Act 1974, UP Imposition of Sealing on Land Holdings Act 1974, Orissa Land Reforms Act 1965 and ESMA.

The bench held that although the government was entitled to place laws in the Ninth Schedule, such legsislations if they violated the fundamental rights guaranteed under Articles 14, 15, 19, 20 and 21 of the Constitution are liable to be struck down by courts.

An NGO -- Common Cause had challenged such legislations.

The Supreme Court constituted a nine-member bench to decide on the constitutional validity of the issue.

The NGO had asked whether laws included in the Ninth Schedule on or after April 24, 1973, were entitled to the protection under Article 31-B, which offers immunity against fundamental rights.

The petitioner also wanted to know whether the inclusion of a law in the Schedule was violative of Article 14, 19 and 31 and destroys the basic structure of the Constitution.

Delivering the verdict in a packed courtroom, the bench said the government while putting a law under the Ninth Schedule should adopt a middle path to maintain a balance between the fundamental rights and Directive Principles "that
has to be tilted towards the citizen."

Refusing to accept the government's contention that such laws enjoyed absolute immunity, the bench said that any legislation, which was not compatible with the basic structure of the Constitution can be declared null and void by the courts.

"The power to grant absolute immunity is not compatible with the basic structure of the Constitution," the bench observed.

Expressing its strong resolve to protect the Constitutional guarantees accorded to the citizen, the bench said, "Law put in the Ninth Schedule has to be tested on the touchstone of the basic structure as even a minor change can destroy the basic structure."

The cut-off date April 24, 1973 has been fixed for the Ninth Schedule as it was on that day a 13-member Constitution bench of the Supreme Court gave a historic ruling in the Keshavananda Bharti case that Parliament had no power to amend the basic structure of the Constitution.

The Ninth Schedule emanates from Articles 31 A and 31 B, which were introduced by the Constitution's (first amendment) Act 1951, with effect from June 18, 1951, to ensure that certain laws were valid even if it violated the fundamental rights of a citizen.

In other words, Parliament arrogated to itself the power to amend the Constitution in any manner it liked, irrespective of the fact whether it overrode the fundamental rights.

Incidentally, in 1952, the Supreme Court in the Shankari Prasad Singh Deo vs Union of India case held that Articles 31 and 31 B were constitutionally valid amendments.

Since a constitutional amendment was an exercise of constituent power, Fundamental Rights under Part III were not immune from such amendment. The effect of that judgment was that Article 13 (2), which prohibited the state from making legislations abrogating the fundamental rights, will not apply in the case of laws placed in the Ninth Schedule of the Constitution.

Secondly, it was held in the said judgment that the powers of the High Court and the Supreme Court were not in any manner infringed and all that was done by insertions of Articles 31 A and 31 B were that a certain class of cases had been excluded from being given the protection of fundamental right.

However, subsequently in 1967 in the Golak Nath case by a majority opinion a 11-member Bench of the apex court ruled that Parliament had no power to amend Part III of the Constitution such as to take away or abridge fundamental rights.

The view was further strengthened in the Kesavananda Bharti case and the Indira Gandhi vs Raj Narian case wherein it was held that Parliament's power to make laws and amend the Constitution cannot take away the fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity.

01-12-2007, 04:54 AM

Is there any way to find out the retirement times of the current SC bench ? When does CJ Sabharwal retire ? Who will become CJI after him ?

01-12-2007, 05:01 AM

Indira Jaisingh in a whine-mode. Soon we will have calls for electing the judiciary, reservation in judiciary, power of electing judges by MPs and MLAs. SC will soon become Manuwadi, brahminical institution.

http://www.rediff.com/news/2007/jan/11indira.htm

QUOTENinth Schedule: What the Supreme Court judgment means

The Ninth Schedule, which finds itself under debate after the Supreme Court judgment on January 11, 2007, was added to the Constitution in 1951, primarily to deal with a situation in which the Supreme Court struck down land reform laws.

In order to remove all such land reform laws from being struck down on the ground that compensation was inadequate or on any other ground, Parliament amended the Constitution to create the Ninth Schedule.

Article 31B of the Constitution stated that any law in the Ninth Schedule could not be challenged in the courts. The perception quite clearly then was that the judiciary was the last bastion of vested interests and hence the role of the judiciary in striking down such laws had to be taken away.

This was a progressive measure and a look at the Acts inserted in the Ninth Schedule over the years shows that all land reform laws were put in the Ninth Schedule making them beyond challenge of the Supreme Court.

A turning point in 1973

In the Keshavananda Bharati case (a case argued by the late lawyer Nani Palkhivala challenging the Kerala Land Reforms Act 1963 and the amendment to the Act made in 1969), the Supreme Court for the first time held that any law, including a Constitutional Amendment, which altered the basic structure of the Constitution could be struck down.

This judgment virtually made the judiciary the arbiter of what is the basic structure of the Constitution, as the Constitution has no such listing. It gave the judiciary enormous powers to write or rewrite the Constitution through interpretation.

What judgment on the Ninth Schedule was delivered on January 11?

The Supreme Court has held that it can strike down any law which is included in the Ninth Schedule, if, in its opinion, the law violates the basic structure of the Constitution and if it was inserted after April 24, 1973 (the day the Keshavananda Bharati judgment was delivered.)

The January 11 judgment virtually repeals an important provision of the Constitution, namely Article 31B, and undoes what was done in 1951. In other words, it gives to the Supreme Court the power to strike down any law on the ground that it violates fundamental rights resulting in the violation of the basic features of the Constitution.

It would seem the court is saying that any violation of fundamental rights results in the violation of the basic features of the Constitution.

Thus, the final arbiter on what are fundamental rights, what amounts to a violation of fundamental rights and what are the basic features of the Constitution is now the Supreme Court.

The significance of the January 11 judgment

There is no doubt that the Supreme Court has established its supremacy over Parliament in the matter of basic features and fundamental rights. The judgment is likely to have devastating results and raises several questions.

Will land reform laws enacted after 1973 be struck down on the ground that they expropriate the landlord and thus violate the basic feature of the Constitution, the right to property?

Will Urban Land Ceiling laws be struck down on the same ground?

The majority of the laws in the Ninth Schedule deal with land reform and now can be struck down if some judges of the Supreme Court feel they violate the basic structure of the Constitution.

Bonded labour laws and the Kerala Agricultural Workers Act 1974 feature in the Ninth Schedule. These could be challenged on grounds of violation of the basic features of the Constitution.

We live in times when the Supreme Court believes that liberalisation, privatisation and globalisation are good for the country and any law that hinders these will violate fundamental rights and hence, the basic features of the Constitution.

Therefore, for example, when policies or laws regarding compulsory licensing of life saving drugs are challenged by the pharmaceutical industry, on the ground that a particular policy or law, restricts the freedom of trade and hence prevents globalisation, and if such a law were put in the Ninth Schedule to protect it from challenge in the public interest, the Supreme Court may well say the rights of the pharmaceutical industry are violated and hence, the basic structure.

Thus, the Supreme Court becomes the final arbiter of what is in the public interest. This function can no longer conclusively be performed by Parliament.

If the Contract Labour Act, preventing permanent jobs from being given on contract, is put in the Ninth Schedule, the Supreme Court could well strike it down on the ground that it violated the fundamental rights of employers and hence the basic structure.

Certainly, the Supreme Court will have a busy time deciding the fate of laws and Constitutional Amendments reserving jobs and seats in educational institutions for Scheduled Castes, Scheduled Tribes and Other Backward Classes, on the ground that they violate the basic features of the Constitution.

The impact of the January 11 judgment

It makes the Supreme Court one of the most powerful courts in the world and also one of the most unaccountable, as it is a self-nominated judiciary.

The court now has the power to embrace any economic policy it chooses to interpret as an infringement of fundamental rights. It retains the power to strike down any legislation enacted by Parliament pursuant to the political aspirations of the nation, on the ground that it violates the basic features of the Constitution.

The function of the Supreme Court now becomes quite clearly becomes setting and unsettling political agendas, through its power to decide what are the basic features of the Constitution and what policy considerations it will take into account for interpreting fundamental rights.

Indira Jaising is a wellknown Supreme Court lawyer

01-12-2007, 05:14 AM

Dang - you beat me to that answer Vishwas.

QUOTESC will soon become Manuwadi, brahminical institution.
Not so soon.. Justice K G Balakrishnan - India's first Harijan CJ to take over next week

01-12-2007, 05:27 AM

From Wiki

http://en.wikipedia.org/wiki/K._G._Balakrishnan

QUOTEJustice Balakrishnan has made many intuitive judgements, such as asking the election Commission to debar the political parties. He has given several rulings, which have had far reaching effects on society. His controversial judgement asking the election commission to debar the political parties, which impose hartals on the public, has been warmly welcomed by the populace.

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01-12-2007, 05:32 AM

http://www.rediff.com/news/2007/jan/11spec.htm

QUOTEMinister of State for Science and Technology Kapil Sibal, who is also an eminent lawyer, dubs Thursday's Supreme Court judgment, that says laws enacted under the Ninth Schedule can be reviewed by the judiciary, as "revolutionary."

Senior Supreme Court lawyer Indira Jaising says the judgment will make the Supreme Court and other Indian courts one of the most powerful courts in the world.

Rajiv Dhawan, brilliant interpreter of the Indian Constitution, thinks the apex court has tried to do some "very delicate balancing" between the rights and restrictions awarded in the Constitution, while well-known activist and liberal lawyer Prashant Bhushan wants a national debate on why the basic structure of Constitution itself cannot be touched.

The judgment reaffirms the judiciary's faith in maintaining 'the basic structure' of the Indian Constitution.

Dhawan told rediff.com that this judgment is a compromise between the liberals who want to use political power to enlarge the Ninth Schedule and the conservatives who want to use this power carefully.

While highlighting the most important part of the judgment, Dhawan said, "Normally, Constitutional interpretation proceeds on the assumption of the primacy of Fundamental Rights. By giving primacy to the public good over Fundamental Rights that presumption is slightly reversed. This is inimical to civil liberty."

But there are many Acts which do not need the protection of the Ninth Schedule like the now defunct Maintenance of Internal Security Act and the 69 per cent reservation in Tamil Nadu, he said.

He said the purview of the Ninth Schedule was excessively enlarged and this judgment "exposes the legislature."

The January 11 judgment states that although the government is entitled to place laws in the Ninth Schedule, if it violates the Fundamental Rights guaranteed under Articles 14, 15, 19, 20 and 21 of the Constitution they are liable to be struck down by the courts.

The judgment also said if any law kept in the Ninth Schedule is found 'not in accordance with the basic structure of the Constitution' it can be challenged and struck down.

The judgment wants laws under the Ninth Schedule to pass a dual test. One, it should not violate Fundamental Rights under Articles 14,15,19,20 and 21 and it should not violate the basic structure of the Constitution.

Dhawan said it is very important to note that the Supreme Court has added Article 15 in their judgment.

Many legal experts said any quota given while considering religion would become almost impossible now.

Quotas awarded by state governments and kept under the Ninth Schedule to protect it from being challenged in the Supreme Court will come under deeper scrutiny, sooner rather than later, say experts.

Any education quota above 50 per cent (the ceiling fixed by the Supreme Court) will now become challengeable.

Article 15 prohibits 'discrimination on grounds of religion, race, caste, sex or place of birth'; Article 19 deals with the 'protection of certain rights regarding freedom of speech etc'; Article 20 gives citizens protection in respect of conviction for offenses and Article 21 gives protection of life and personal liberty, now protected by the January 11 judgment like never before.

Ravishanker Prasad, lawyer, former Union minister and Bharatiya Janta Party leader, told rediff.com, "I welcome the judgment because basically it reaffirms the power of judicial review given to the Supreme Court under the Constitution. The judgment has sobering restrictions against competitive politics."

He said just because some political party gets a majority it cannot be allowed to turn Indian democracy into a monarchy, so the idea of upholding the "basic structure of the Constitution" is to be welcomed.

Prasad does not want the idea of basic structure itself to be challenged as recommended by Prashant Bhushan because, he argues, the idea of the "basic structure" is well ingrained in the minds of Indians. The BJP leader said, "Don't see the judgment from the premise of reservations, it should not be the touchstone of the reservation issue."

However, the issue of quotas in educational institutions will become the issue of hot debate because as Sibal points out the inclusion of Article 15 in the judgment is a very important issue.

Sibal told rediff.com, "Today's nine-judge ruling is revolutionary because it says that any legislation that violates the Fundamental Rights guaranteed under Articles 14, part of 15, 19, 20 and 21 of the Constitution are liable to be struck down by the courts."

Bhushan "welcomed the judgment. It says that no Constitutional amendments can violate the basic structure of the Constitution. But I question the concept of "basic structure" as envisaged today and believe that we should debate the basic structure of the Constitution itself."

Jaising, who wants a "new Constituent Assembly" to debate the Constitution, says, "When the Supreme Court says that judges will decide if reservations in education violate the basic structure of the Constitution or not I have an objection. Because, like reservations there are many issues which are actually the result of healthy politics of the country and are solid political decisions. Political ideas should be debated and defeated only in Parliament. You can't go to "un-elected" people (judges) to strike down the political decisions in a democracy. This judgment is against the idea of political freedom. How can judges decide the merit of the people of India's collective political will?"

Asked if the judgment will create tension between the legislature and the judiciary, Bhushan said, "It will create tension, but it can't be helped."

Senior lawyer Anil Divan felt, "This judgment is reaffirmation of the previous judgments on similar lines which say that laws under the Ninth Schedule cannot violate the basic structure of the Constitution. There is nothing to panic."

01-12-2007, 05:54 AM

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http://www.chennaionline.com/colnews/newsi...NAME=Tamil+Nadu

QUOTEÂ PMK shocked over Supreme Court ruling
Search for More News

Chennai, Jan 11: Expressing shock over the Supreme Court ruling that all laws placed under the Ninth Schedule of the Constitution are subject to judicial review, the PMK, a constituent of the ruling UPA at the Centre, today said the verdict would only lead to confusion as more than 200 Acts included in the Schedule would now be open for review.

PMK founder S Ramadoss, in a statement here, demanded that the Centre and the state governments take "immediate steps to avoid the danger of review of such Acts."

He said Prime Minister Manmohan Singh should immediately convene a conference of Chief Ministers to discuss the issue.

He also demanded that Chief Minister M Karunanidhi should convene an all-party meeting to discuss the issue.

"In a democracy, public welfare was the most important thing and if the courts started scrutinising the laws enacted for public welfare, Parliament and state legislatures could not enact laws for the purpose, which might lead to these institutions losing their individuality, endangering democracy," he said.

He pointed out that the Tamil Nadu Act providing for 69 per cent reservation for certain sections of society had been included in the Ninth Schedule and a situation had been created now by which even this Act would come up for review. (Our Correspondent)

01-12-2007, 05:58 AM

http://www.hindu.com/thehindu/holnus/002...112224.htm

QUOTE'Apex court judgement not solution to reservation issue'

Chennai, Jan. 11 (PTI): Reacting to the Supreme Court's verdict on the judicial review issue, Chief Minister M Karunanidhi tonight said the judgement was not a solution to the reservation issue.

In a statement, he said the apex court itself has said today that a three-member committee of judges would be set up for reviewing reservation laws and take a decision.

"We will wait till such a review," he said.

A Tamil Nadu Act providing 69 per cent reservation to certain sections of the society had been incorporated in the Ninth Schedule of the Constitution and a case questioning the validity of the Act was before the apex court.

01-12-2007, 06:16 AM

ToI editorial - neither here nor there..

http://timesofindia.indiatimes.com/OPINION...how/1100878.cms

QUOTE The Supreme Court had quite a few run-ins with the legislature and executive last year. This year is proving to be no different.

The apex court and government are on a collision course over the composition of the Forest Advisory Committee (FAC) that sanctions forest land for development.

Last week, government made its displeasure known over the court order staying constitution of the FAC. What was remarkable about government's response was the way the additional solicitor-general (ASG) argued it in court.

He bluntly advised the judges to keep to their turf and not step on the executive's toes. Not surprisingly, the court reacted strongly and termed the ASG's statements "blasphemous".

Confrontation between the court and executive is, of course, nothing new. The history of these collisions can be traced back to the 1950s when the Jawaharlal Nehru government tripped over the court's objections to land reform.

The government responded with the First Amendment and the creation of the Ninth Schedule, where legislation was kept out of the reach of judges.

Since then there have been periodic flare-ups. Beginning with the Golaknath case in 1967, the SC first developed what is known as the basic structure doctrine where it has taken the ultimate responsibility of defining the essence of the Constitution.

In the famous Keshavananda judgment, the court ruled that the 'basic structure' of the Constitution could not be tampered with.

Court-executive relations reached its nadir during Indira Gandhi's time when the court struck down a proposed constitutional amendment that prohibited the judiciary from deciding on the validity of contested elections.

No one wants a return to the days that led to a complete constitutional breakdown. The core issue is whether the SC is being too activist or not.

This has been raised on several occasions, including the recent controversy over demolitions in Delhi. There are no easy answers as to where to draw the line on the court's jurisdiction.

By its very nature the SC is composed of nominated judges who are meant to be above politics of the times. However, it cannot watch idly if mob rule threatens to subvert the Constitution.

The court, along with the legislature and executive, is part of a complex triangle where each player does not overstep its boundary. This is by no means an easy task.

But for the sake of good governance, the tensions within this tripartite relationship must be few and far between.

01-12-2007, 06:19 AM

http://www.hindustantimes.com/news/181_1896671,0008.htm

QUOTESC verdict on 9th schedule to affect India: CPI

Sutirtho Patranobis

New Delhi, January 11, 2007
Â Â
The CPI on Thursday called the Supreme Court decision to bring all post-1973 legislations under judicial purview as "very unfortunate" and that it would influence the functioning of the Indian democratic system.

The Party said the 9th schedule was a safeguard for pushing forward economic reforms aimed at improving the conditions of the marginalised and the under-privileged. "It also benefited the nation as a whole," CPI leader Gurudas Das Gupta told HT on Thursday.

Das Gupta said that 9th schedule was brought in as an amendment by Indiaâs first Prime Minister Jawahar Lal Nehru in 1951 to push forward land reforms. "Late Prime Minister Indira Gandhi had taken recourse to the Schedule when the courts had ruled against the nationalisation of banks in the 1960s," Das Gupta said.

The CPI leader said that the decision would affect the supremacy of the Parliament. "Several reforms would be affected because the propertied class can now approach the court on the plea of Right to Property. In fact, the deliberations in Parliament can also be put under judicial scrutiny," he said.

Das Gupta added that with the decision elected representatives would become subsidiary to those who are not elected by the people.

The CPI(M), however, was more guarded in its reaction. The Partyâs politburo member Brinda Karat said that the Supreme Court decision could have "serious implications". She, however, added that the party would give a thought-out reaction after a detail internal discussion on the Apex Court verdict.

01-12-2007, 06:29 AM

http://www.bloggernews.net/13766

QUOTESo what did the Supreme Court rule on thursday. It said that laws placed under Ninth Schedule after April 24, 1973 shall be open to challenge in court if they violated fundamental rights guaranteed under Article 14, 19, 20 and 21 of the Constitution. So what is the significance of 1973. Foremost is the landmark verdict in the Keshavanand Bharathi case when the supreme court for the first defined the concept of the basic structure of the constitution. Also if you look at the acts prior to 1973 in the 9th schedule they were primarily agrarian reforms. Most of the executive abuse started with Indira Gandhiâs actions prior to emergency and subsequent vote bank politics that saw absurd laws making their way to the 9th schedule violating freedom and imposing restrictions.

The Ninth schedule saga also highlights an important aspect of the Right of Center Political and Intellectual Movement in India. That for 34 years there was not a murmur of protest or legal challenge tells us that there is no Right of Center Movement in India. Yes there are some who claim to be for reforms and markets but these are individuals who see capitalism as an end in itself while missing the underlying fundamental principle of Individual Freedom. It is this same mindset that endorses the Stateâs pursuit of industrialization through SEZs on the basis of phony faith in capitalism while looking the other way as the State violates fundamental rights and individual freedom to acquire private property on behalf of private enterprises. This underlying intellectual contradiction sums up why there is no constituency for economic reforms in the country - because there is no fundamental belief in the primacy of individual freedom.

Offstumped Bottomline: By willingly ceding our freedoms to the State, we the people have allowed for the Ninth Schedule to thrive for decades. The 9th schedule has allowed for a perverse political culture curryed political favor to specific social groups and special interests. It has instilled a deep sense of entitlement in the politician to be able legislate just about anything to suit political interests, the constitution be damned.

The Supreme Courtâs verdict is a welcome Judicial Antidote to the dubious politics of Social Justice.

01-21-2007, 01:31 AM

QUOTE Constitution is supreme

Subhash C Kashyap

The legislature finds its wings clipped by the January 11 apex court order. What next?

The Ninth Schedule was originally not a part of the Constitution that its founding fathers had scripted. It was the first Constitution Amendment Act, 1951, which introduced this Schedule and provided that certain Acts and Regulations in the areas of land reforms listed in it would be valid under the Constitution notwithstanding any contradicting judgement, decree or order of a court. The purpose to place certain laws under the Ninth Schedule was to make them immune to the intervention of courts that upheld the Fundamental Right to Property.

There were long-standing commitments predating Independence and the Constitution given by the nationalist movement in favour of land reforms, abolition of zamindari, etc. Almost every time an order for acquisition of land came up before the court, it was found to be contrary to the Right to Property and was struck down, making it impossible to pursue the policy of land reforms.

Initially, only 13 land reform laws were included in the Ninth Schedule. By 1973, the number had gone up to 66; currently, it is 284. In 1973, in the Kesavananda Bharati case, the Supreme Court propounded the doctrine of the basic features of the Constitution. Under the doctrine, it was held that the basic structure of the Constitution could not be altered even by constitutional amendments.

The apex court observed that it could examine whether a particular law enacted by the legislature had a reasonable balance with the Directive Principles of the State Policy. Even a declaration made by the legislature that the law was for giving effect to certain Directive Principle could not be regarded as conclusive.

The court further said that the part of Article 31Â© of the Constitution which sought to take away the jurisdiction of the judiciary on the ground that the law was declared to be for giving effect to principles in Part IV of the Constitution itself was void.

In several judgements of the Supreme Court thereafter - Waman Rao case, Minerva case, etc - it was clearly held that the power of judicial review could not be questioned either under Article 31(B) or Article 31Â© of the Constitution. The judicial review, thus, has always been the part of the powers and responsibilities of the Supreme Court as ordained by the Constitution. So, the January 11 order is only a reiteration of the position as it existed under the Constitution and various leading judgements of the Supreme Court, notwithstanding the overreaction - calling it path-breaking, historic, etc.

Also, it would be seen that the basic rationale for the Ninth Schedule arose from the property laws that have finally been removed from the Fundamental Rights chapter. It is no more a Fundamental Right that could come in the way of land reforms legislation and the like. The trouble arose after the powers that be started misusing the Schedule as the "dumping ground" for all controversial pieces of legislation in which they had some vested interests and partisan vote-bank constraints.

Acts like FERA, COFEPOSA, MRTP, 69 per cent reservation in Tamil Nadu, etc, got introduced into the Ninth Schedule even though none of them was over land reforms. And before the present judgement came, there was considerable lobbying about several currently controversial pieces of legislation being introduced in the Ninth Schedule to make them immune from the judicial review.

It needs to be categorically asserted that the judicial review, to the extent that the Constitution permits, applies to all legislations passed by the Union and State legislatures. It will be a clear fraud on the Constitution if unconstitutional laws are sought to be legitimised through the Ninth Schedule. As the court has said, any law which is found to be the antithesis of the Fundamental Rights - Article 14, 19 and 21 - or which violate some basic features of the Constitution, cannot escape judicial review by being included in the Ninth Schedule.

This applies to all laws passed after April 1973 when the basic features were being enunciated in the Kesavananda Bharati case. So much for the justification of the Supreme Court judgement. But the other side of the problem is with the legitimacy of the basic features of the doctrine itself. The present judgement seems to have come closer to some defining and delimiting the basic features by mentioning the golden triangles of Articles 14, 19 and 21 and the principles enshrined therein.

One is, however, tempted to ask whether Article 17, which abolishes untouchability, is not a basic feature? What about Articles 13 and 32? After all, it is only under Article 31 (it is 13) that laws in violation of the Fundamental Rights can be declared ultra vires. And, it is under Article 32 that a citizen can approach the Supreme Court for the infringement of his Fundamental Rights.

Second, if the focus of the present judgement is on the violation of the Fundamental Rights being impermissible of constitutional amendments, we may be back to the situation of the Golak Nath case. After all, it was then said that the Fundamental Rights could not be taken away by constitutional amendments, while other provisions could be amended.

A third question that arises is in respect to the constitutional culture under which various illegalities are sought to be confirmed by retrospective legislations. The case that springs to mind is the Office of Profit Act which was passed to legitimise aberrations that had been going on since as far back as 1959.

Finally, it is possible that a weak legislature and an equally weak executive may be shy or incapable of taking hard and much needed decisions and may find it better to leave the task for the judiciary to perform. Sometimes, what appears to be confrontation between the executive and the judiciary may actually be a matter of convenience.

The founding fathers had clearly defined and demarcated the role of the executive, the legislature and the judiciary. They didn't conceive of the situation when Parliament or the Supreme Court would claim to be supreme. Only the Constitution and the people could be said to be supreme. So long as each organ of the state stays within its legitimate sphere of authority, no question of conflict or confrontation would appear.

(The writer is a former Secretary-General of the Lok Sabha and a well-known constitutional expert)

01-21-2007, 01:46 AM

I think the biggest flaw in the article below is assuming that UPA wants reservation for social justice and equality.

Also, the land reforms were one-time deal. Are reservation one time? Is there any time limit or fall-off for reservation or when a family becomes ineligible for further reservation?

QUOTE The Preamble betrayed

Chandrabhan Prasad | Author and columnist

Whose interest does the judiciary serve when faced with a clash between the spirit of the Constitution and the interest of traditional society? the argument here is that traditional soceity is the feudal system of zamindars and the spirit is upliftment!

For argument's sake, let's just ask one new question to revive an old debate: Has any member of the judiciary read the spirit to the Constitution? In other words, has any member of the judiciary ever read the Preamble of the Constitution, truthfully? A Preamble sets a book's agenda. The whole body of the book, therefore, must primarily address the concerns articulated, albeit in nugget form, by the Preamble.

Ergo: The entire Indian Constitution must be focused on the issues encapsulated in the opening paragraph. What does the Preamble aspire for? It is filled with terms such as "Justice - Social, economic, political, and equality". Creating a just social order for India, thus, becomes the prime objective of the India as a nation state.

What is the prime mandate for the higher judiciary, the Supreme Court to be precise? To primarily protect the Constitution, and, implicitly, the interests of the Republic? Or, is it to serve the justice deficient interests of traditional Indian society?

When the Constitution - duly approved by the Constituent Assembly which enterprisingly claimed and owned up the legacy of the freedom movement - talks of justice, we must figure out the sources of injustice. Are the sources of injustice rooted out in the Republic, or traditional society?

The answer is simple: The Constitution is asking the Republic to correct traditional society. Traditional society, therefore, in the mind of the Constitution is the fountainhead of injustice.

Where does the judiciary stand between the Constitution and traditional society - a society structured along caste lines, with devious designs of castes and the outcastes? Take, for example, land reforms, zamindari abolition to be precise. Do the learned judges know of the medievalism of the zamindars? Wasn't it necessary to abolish zamindari to reclaim the dignity of the largest section of India's population immediately after Independence?

This forms the crust of the question: Why, after all, did the laws relating to land reforms became the first set of laws to be inserted in the now controversial Ninth Schedule?

Relocating the Ninth Schedule in perspective, the ex-zamindars, while fighting zamindari abolition, were using the judiciary to subvert land reforms - one of the noblest tasks initiated by the Jawaharlal Nehru Government. Under the zamindari system, the peasants were treated as sub-humans. Millions of hectares of land got trapped in litigations. In fact, in the Bihar, Karnataka and Orissa, not one centimetre land was found as surplus during the first phase of the passing of Land Ceiling Acts.

With whom was the judiciary during land reforms? Did it stand with the Republic, or with the traditional feudal society? Didn't the judges know what zamindari meant to the average citizens? Weren't their lordships aware of where the interests of the Indian Republic lay? Had they not read the Preamble of the very Constitution they were supposed to uphold?

It is in this background that the Ninth Schedule should be understood.

In the popular Dalit perception, the Indian Judiciary doesn't deliver justice. It is no exaggeration to say that the judiciary often retards the course of justice. whoa!

The judiciary sometimes takes suo motu cognisance of media reports highlighting glaring issues. Has the judiciary ever taken note of Dalit issues on the basis of media reports? For instances, when the legendary journalist in his ground-breaking research article, "In search of a Dalit journalist", published in this newspaper on November 16, 1996, showed that there isn't a Dalit journalist in Delhi's mainstream media establishments, did the Supreme Court call for any explanation from the editors? How can it be possible that a population base equal to the combined population of the UK, France and Italy can't produce a single Dalit journalist?

Is it in the interest of the Constitution to keep Dalits excluded from India's public institutions? Reservations in Government jobs and education have been the only liberating tool yet. Because of reservations, there is a visible Dalit middle class. Has the judiciary ever been kind to this spectacular public policy for Dalits? Often, Dalits are denied justice from academic institutions. How can institutions like JNU and Delhi University award doctorates to Dalits, and refuse appointment on the ground of "merit"? Are these not commie citadels?Â Has the judiciary ever taken a suo motu cognisance of such news items? Recently, it was reported that not even one of Delhi's 80-plus degree colleges has a Dalit as principal. Did the judiciary take any note of it? Well we had a dalit president and now a dalit CJI. Shouldn't the author take note of these? 

Along with this Ninth Schedule debate, we must open up a new one. Whose interest does the judiciary serve when faced with a clash between the spirit of the Constitution and the interest of traditional Indian society?

As a matter of fact, the Government would always want to sideline the judiciary by bringing a host of subjects under the Ninth Schedule. This is an unhealthy trend, and the judiciary has every right to protect its own rights. But while doing so, the judiciary should not punish the social underclass. It should make a distinction between issues, social and political.

01-24-2007, 08:11 AM

Ninth Schedule: SC crossing boundary, JD(U) chief tells PM
http://in.news.yahoo.com/070123/48/6bfx4.html

01-24-2007, 04:55 PM

Judiciary getting attuned to values of liberalisation: Karat

QUOTECommunist Party of India (Marxist) general secretary Prakash Karat on Tuesday said the judiciary was getting attuned to the values of liberalisation and privatisation, which are against the spirit of the Constitution.

01-24-2007, 11:30 PM

Commies always disregard country's courts, nothing new here.

01-24-2007, 11:33 PM

QUOTEConstitution changes out of question: Experts 
Pioneer.com
Abraham Thomas | New Delhi
Constitutional experts and legal luminaries are outraged at the political outcry to review the Constitution to meet political objectives following the recent Supreme Court verdict on Ninth Schedule of the Constitution.

Stating that judicial scrutiny of laws is an inseparable feature of the Constitution, the experts on constitutional law scoffed at the demand to keep out laws from judicial review, calling it a "political gimmick " with no basis under law.

Noted constitutional lawyer Rajiv Dhavan said, "the recent Supreme Court judgement clearly holds a set of principles that will determine the fate of any legislation or amendment to the Constitution in future. In these circumstances, what purpose will a constitutional amendment serve".

By ending protection to any law/regulation afforded under the Ninth Schedule of the Constitution, Dhavan said, "The back of Article 31B (of Constitution) is broken." Meant to protect agrarian laws, the Ninth Schedule came with Article 31B resulting from a Constitutional amendment in 1951. It served as a "protective umbrella" for laws against judicial review, which violated fundamental rights of citizens. 

The recent SC verdict had thrown all laws placed under the Ninth Schedule after April 24, 1973, open to judicial scrutiny. This meant that the Tamil Nadu reservation law that provides for 69 per cent reservation would be tested on the principles of reasonableness as given under Article 16 of the Constitution.

Under DMK pressure, the Congress had indicated it has an open mind on demand to review the Constitution.

Terming the demands by political parties to amend the Constitution as "meaningless", Dhavan said, "It is a political gimmick to impress the voters," adding, "What review will they make for any (Constitutional) amendment will suffer the same fate."

Commenting on the political parties' anxiety to wriggle out of the "open scrutiny" of laws by the judiciary, constitutional expert Subhash Kashyap said, "Where do they (the Government) have the cheeks to suggest a constitutional review. "In 2002, the National Commission to Review the Working of the Constitution had recommended changes in Article 31B to the extent that laws on agrarian reforms and those which provide reasonable quantum of reservation to be afforded immunity from judicial review."

Terming the recent political statements to exclude judicial scrutiny of laws under the Ninth Schedule as "unreasonable", senior advocate and former member of the Law Commission NM Ghatate said, "The Ninth Schedule of the Constitution has the potential of destroying the democratic structure of Constitution." 

According to him, the Supreme Court had correctly held, "an organ that makes laws cannot decide the law. It is the job of an independent institution, namely the judiciary."

A line has been drawn between vote-bank politics and the democratic process, he said, adding, "Parliament must know where political interest ends and national interest begins."

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