11-01-2006, 01:39 AM
<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>SC questions unbridled powers under 9th Schedule </b>
Pioneer.com
Abraham Thomas | New DelhiÂ
The Supreme Court, hearing a bunch of petitions challenging the legislature's power to exclude judicial scrutiny from laws under the Ninth Schedule of Constitution, expressed doubts on Tuesday on the unbridled powers available with the Centre under this provision.
The nine-judge Bench framed a question for consideration in the intensely debated issue whether certain rights which needed adjudication could simply be made non-justiciable by the Government by exercising power under this provision. Article 31 (B), being the bone of contention between the judiciary and the legislature, allows Parliament to place any law under the Ninth Schedule of the Constitution granting automatic immunity from any judicial scrutiny.
<b>Said Justice SH Kapadia of the Bench, "The Government can have certain areas, for instance education, or even the recent reservation issue, where it does not desire judicial scrutiny. But there is a caveat that if those rights come in conflict with the basic principles of equality, the court has to strike a balance. Can you then keep out the court,"</b> the court asked.
Responding to the fear expressed by the Bench, senior advocate Fali S Nariman on behalf of the petitioner said, "The Government has overpopulated the Ninth Schedule with non-reform laws." Reiterating that Article 31 (B) was created in 1951 to preclude only land reform laws from judicial scrutiny, he maintained that since the Keshavananda Bharti verdict in 1973, any Constitutional amendment has to pass the 'basic structure' theory to deserve protection.
<b>Nariman, who argued on behalf of one of the petitioners, stated that judicial supremacy over legislation decision is established in the very scheme of the Constitution. Senior advocate Harish Salve supported Nariman's view that the Parliament' s power to amend Constitution does not permit it to become judge of its own legislation. The Ninth Schedule is not a 'laundry bag' he said, emphasising that every time a law is placed under Schedule, the Constitution allows only a one time protection.</b>
The Bench seemed to concur on the view that "the scheme of Constitution suggests validity of all laws with regard to fundamental rights is to be tested by court. Some departure was made in 1951 by the insertion of the Ninth Schedule. The question, however, is after the 1973 judgement should those reasons continue in since Article 31 (B) is applicable to all laws." Sabharwal contended that the cut-off date of allowing all laws prior to 1973 judgement while disallowing any to continue in violation of basic structure post-1973 should serve as 'middle path'.
<!--QuoteEnd--><!--QuoteEEnd-->
Pioneer.com
Abraham Thomas | New DelhiÂ
The Supreme Court, hearing a bunch of petitions challenging the legislature's power to exclude judicial scrutiny from laws under the Ninth Schedule of Constitution, expressed doubts on Tuesday on the unbridled powers available with the Centre under this provision.
The nine-judge Bench framed a question for consideration in the intensely debated issue whether certain rights which needed adjudication could simply be made non-justiciable by the Government by exercising power under this provision. Article 31 (B), being the bone of contention between the judiciary and the legislature, allows Parliament to place any law under the Ninth Schedule of the Constitution granting automatic immunity from any judicial scrutiny.
<b>Said Justice SH Kapadia of the Bench, "The Government can have certain areas, for instance education, or even the recent reservation issue, where it does not desire judicial scrutiny. But there is a caveat that if those rights come in conflict with the basic principles of equality, the court has to strike a balance. Can you then keep out the court,"</b> the court asked.
Responding to the fear expressed by the Bench, senior advocate Fali S Nariman on behalf of the petitioner said, "The Government has overpopulated the Ninth Schedule with non-reform laws." Reiterating that Article 31 (B) was created in 1951 to preclude only land reform laws from judicial scrutiny, he maintained that since the Keshavananda Bharti verdict in 1973, any Constitutional amendment has to pass the 'basic structure' theory to deserve protection.
<b>Nariman, who argued on behalf of one of the petitioners, stated that judicial supremacy over legislation decision is established in the very scheme of the Constitution. Senior advocate Harish Salve supported Nariman's view that the Parliament' s power to amend Constitution does not permit it to become judge of its own legislation. The Ninth Schedule is not a 'laundry bag' he said, emphasising that every time a law is placed under Schedule, the Constitution allows only a one time protection.</b>
The Bench seemed to concur on the view that "the scheme of Constitution suggests validity of all laws with regard to fundamental rights is to be tested by court. Some departure was made in 1951 by the insertion of the Ninth Schedule. The question, however, is after the 1973 judgement should those reasons continue in since Article 31 (B) is applicable to all laws." Sabharwal contended that the cut-off date of allowing all laws prior to 1973 judgement while disallowing any to continue in violation of basic structure post-1973 should serve as 'middle path'.
<!--QuoteEnd--><!--QuoteEEnd-->