10-31-2006, 02:22 AM
<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>Legislature versus Judiciary: Debate begins on Ninth Schedule </b>
Pioneer.com
Abraham Thomas | New Delhi
JUDGMENT WEEK
The nation's best legal minds lined up on Monday to battle out one of the most contentious debates in the Constitution's history to decide whether the legislature has any power, if at all, to set limits on the judiciary.
Under challenge is a constitutional provision that insulates from judicial review, certain State and Central Acts placed under the Constitution's Ninth Schedule enacted in 1951.
The hearing is yet another reflection of the on-going tussle between the legislature and judiciary. <b>The Ninth Schedule allows the Government to circumvent judicial scrutiny and revive even such laws that had been declared void by the court. Seen in this context, the Centre's attempt to fiercely defend its privilege has set the stage for a path-breaking judicial pronouncement</b>.
The battery of senior advocates engaged by the Centre and State Governments explains the stakes in store for the Government.<b> Besides Solicitor General Ghoolam Vahanvati and Additional Solicitor General (ASG) Gopal Subramanium, senior advocates Soli J Sorabjee, Ram Jethmalani and TR Andhyarujina will present the Government's case.</b>
Leading the challenge from the other side will be senior advocates Fali S Nariman and Harish Salve.
Opening the arguments before the nine-judge Bench, <b>Nariman claimed the Parliament cannot "preclude" judicial scrutiny by enacting a legislation to protect any number of State and Central Acts. </b>He was referring to the Constitutional provision contained in Article 31 (B) that provided a sort of "protective umbrella" to all such Acts placed under the Ninth Schedule.
The Ninth Schedule has its genesis in the very first constitutional amendment enacted in 1951 when Article 31 (B) was inserted in the Constitution. <b>Pandit Jawaharlal Nehru, who originally drafted the amendment, had placed all land reform legislation under the Ninth Schedule. His aim was to keep out judicial interference from hampering his Government's socialist policies.</b>
The provision says none of the laws contained in the Schedule shall be declared void on the grounds that it was inconsistent with any of the fundamental rights, notwithstanding any decree or order of any court or tribunal to the contrary.
<b>This explains the anxiety of the legislature to place about 285 laws under the Ninth Schedule, as the figure currently stands.</b>
Since no limit or category of laws to be included/excluded in the 9th Schedule is specified, several laws including<b> MRTP Act, FERA and COFEPOSA and the legislation providing 69 per cent reservation in Tamil Nadu have been added to the Schedule from time to time</b>.
Commenting on this dangerous position, Nariman said, "the Ninth Schedule cannot be converted into a vast abyss into which you can throw all laws." His view found concurrence with <b>Chief Justice YK Sabharwal, who observed, "it is not possible for the Parliament to put all laws lock, stock and barrel into the Schedule."</b>
The issue of judicial scrutiny was debated on several occasions in the past. A clinching judgement was delivered by an 11-judge bench of the Supreme Court in 1973, which held that judicial review of any constitutional amendment was possible if it was found to violate the "basic structure" of Constitution. Undoubtedly, judicial review formed one aspect of the basic structure theory and the laws under Ninth Schedule can be tested only if they were violative of the basic structure, the apex court held.
Another ground for challenging the Ninth Schedule which emerged during the hearing was its potential to revive any law struck down by courts for violating fundamental rights of citizens.
Commenting on the issue, the Bench said, <b>"if a law is struck down as illegal can you (Government) give it legality by putting it in Ninth Schedule." </b>
The Court wanted the Government to respond whether an invalidated act needed to be re-enacted before being placed in 9th Schedule or could be revived simply by placing it in the Schedule.
<b>"It is like putting life into a dead person" the bench commented after Nariman remarked that "it was only in Christian theology that a dead man got revived but dead laws been revived is unheard of."</b>
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Pioneer.com
Abraham Thomas | New Delhi
JUDGMENT WEEK
The nation's best legal minds lined up on Monday to battle out one of the most contentious debates in the Constitution's history to decide whether the legislature has any power, if at all, to set limits on the judiciary.
Under challenge is a constitutional provision that insulates from judicial review, certain State and Central Acts placed under the Constitution's Ninth Schedule enacted in 1951.
The hearing is yet another reflection of the on-going tussle between the legislature and judiciary. <b>The Ninth Schedule allows the Government to circumvent judicial scrutiny and revive even such laws that had been declared void by the court. Seen in this context, the Centre's attempt to fiercely defend its privilege has set the stage for a path-breaking judicial pronouncement</b>.
The battery of senior advocates engaged by the Centre and State Governments explains the stakes in store for the Government.<b> Besides Solicitor General Ghoolam Vahanvati and Additional Solicitor General (ASG) Gopal Subramanium, senior advocates Soli J Sorabjee, Ram Jethmalani and TR Andhyarujina will present the Government's case.</b>
Leading the challenge from the other side will be senior advocates Fali S Nariman and Harish Salve.
Opening the arguments before the nine-judge Bench, <b>Nariman claimed the Parliament cannot "preclude" judicial scrutiny by enacting a legislation to protect any number of State and Central Acts. </b>He was referring to the Constitutional provision contained in Article 31 (B) that provided a sort of "protective umbrella" to all such Acts placed under the Ninth Schedule.
The Ninth Schedule has its genesis in the very first constitutional amendment enacted in 1951 when Article 31 (B) was inserted in the Constitution. <b>Pandit Jawaharlal Nehru, who originally drafted the amendment, had placed all land reform legislation under the Ninth Schedule. His aim was to keep out judicial interference from hampering his Government's socialist policies.</b>
The provision says none of the laws contained in the Schedule shall be declared void on the grounds that it was inconsistent with any of the fundamental rights, notwithstanding any decree or order of any court or tribunal to the contrary.
<b>This explains the anxiety of the legislature to place about 285 laws under the Ninth Schedule, as the figure currently stands.</b>
Since no limit or category of laws to be included/excluded in the 9th Schedule is specified, several laws including<b> MRTP Act, FERA and COFEPOSA and the legislation providing 69 per cent reservation in Tamil Nadu have been added to the Schedule from time to time</b>.
Commenting on this dangerous position, Nariman said, "the Ninth Schedule cannot be converted into a vast abyss into which you can throw all laws." His view found concurrence with <b>Chief Justice YK Sabharwal, who observed, "it is not possible for the Parliament to put all laws lock, stock and barrel into the Schedule."</b>
The issue of judicial scrutiny was debated on several occasions in the past. A clinching judgement was delivered by an 11-judge bench of the Supreme Court in 1973, which held that judicial review of any constitutional amendment was possible if it was found to violate the "basic structure" of Constitution. Undoubtedly, judicial review formed one aspect of the basic structure theory and the laws under Ninth Schedule can be tested only if they were violative of the basic structure, the apex court held.
Another ground for challenging the Ninth Schedule which emerged during the hearing was its potential to revive any law struck down by courts for violating fundamental rights of citizens.
Commenting on the issue, the Bench said, <b>"if a law is struck down as illegal can you (Government) give it legality by putting it in Ninth Schedule." </b>
The Court wanted the Government to respond whether an invalidated act needed to be re-enacted before being placed in 9th Schedule or could be revived simply by placing it in the Schedule.
<b>"It is like putting life into a dead person" the bench commented after Nariman remarked that "it was only in Christian theology that a dead man got revived but dead laws been revived is unheard of."</b>
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