11-02-2006, 01:34 AM
<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>SC: When you have to put law in Ninth Schedule, what is the test? </b>
Pioneer News Service | New DelhiÂ
The Government's attempt to clip judicial scrutiny of certain laws by introducing the Ninth Schedule legislation in the Constitution saw the Solicitor General running for cover in Supreme Court on Wednesday which is hearing the issue.
Appearing before the nine-judge Bench, Solicitor General Ghoolam Vahanvati's submissions granting full protection to any law placed in Ninth Schedule prompted the court to spell out its worst fears. Framing its thought, the Bench asked Vahanvati,<b> "when you have to put a law in Ninth Schedule, what is the test you will follow?" </b>
The Ninth Schedule, which came into being with the First Amendment Act in 1951, resulted in insertion of Article 31 (B) into Constitution. Giving the context of reservation, <b>the court asked the Solicitor General that if the Parliament wishes to introduce any legislation on reservation exceeding the benchmark set by court, the same could be kept out of judicial purview by placing it under the Ninth Schedule. To this, the Solicitor General stated that the challenge against the Act could be made on the ground that the law violates the basic structure of Constitution, a theory framed by an 11-judge bench of the Supreme Court in 1973</b>.
But this argument had no takers in the Bench. The latter stated, <span style='color:red'>"There is a distinction between reservation per se and the extent of reservation. If somebody is aggrieved by the excessiveness of reservation granted by the law, can his rights be adjudicated under the overarching principles of secularism, equality and freedom which are the overarching principles of the Constitution." </span>
The court felt it cannot and hence it doubted whether the legislature could be empowered to hold such unbridled powers provided by the provision.
The bench also sought to address the complex issue by deriving the 'original intent' of the legislature in enacting the 1951 Act. Chief Justice YK Sabharwal heading the Bench said,<b> "Because you were permitted to insert Article 31(B) in 1951 since the standards of judicial review came to be set only in 1973, are you entitled to insert whatever you want in 31(B). Do not the citizens have any right to challenge on the ground of violation of fundamental rights."</b>
Senior advocate Soli J Sorabjee, arguing on behalf of Tamil Nadu, which inserted its legislation granting 69 per cent reservation, said, <b>"Fundamental rights cannot serve as a cause of action for invoking judicial review under Ninth Schedule." He contended that 31 (B) creates a 'legal fiction' by which violation of fundamental rights as a ground for challenge is made unavailable though it exists in the Constitution.</b>
But the court could not get a clear response from the Centre as to what standard of adjudication needs to be applied by it in a case, if the Parliament decides to keep the judiciary's hands off by placing a controversial law in Ninth Schedule. Here, <b>the S-G argued that there are no fetters placed on the power of Parliament to keep adding any law to the Ninth Schedule. </b>
<b>Making it clear that the original intent of the legislature was not to protect land reform laws alone but an overall protection to any law placed under the Schedule, he maintained there was no change in position </b>
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Pioneer News Service | New DelhiÂ
The Government's attempt to clip judicial scrutiny of certain laws by introducing the Ninth Schedule legislation in the Constitution saw the Solicitor General running for cover in Supreme Court on Wednesday which is hearing the issue.
Appearing before the nine-judge Bench, Solicitor General Ghoolam Vahanvati's submissions granting full protection to any law placed in Ninth Schedule prompted the court to spell out its worst fears. Framing its thought, the Bench asked Vahanvati,<b> "when you have to put a law in Ninth Schedule, what is the test you will follow?" </b>
The Ninth Schedule, which came into being with the First Amendment Act in 1951, resulted in insertion of Article 31 (B) into Constitution. Giving the context of reservation, <b>the court asked the Solicitor General that if the Parliament wishes to introduce any legislation on reservation exceeding the benchmark set by court, the same could be kept out of judicial purview by placing it under the Ninth Schedule. To this, the Solicitor General stated that the challenge against the Act could be made on the ground that the law violates the basic structure of Constitution, a theory framed by an 11-judge bench of the Supreme Court in 1973</b>.
But this argument had no takers in the Bench. The latter stated, <span style='color:red'>"There is a distinction between reservation per se and the extent of reservation. If somebody is aggrieved by the excessiveness of reservation granted by the law, can his rights be adjudicated under the overarching principles of secularism, equality and freedom which are the overarching principles of the Constitution." </span>
The court felt it cannot and hence it doubted whether the legislature could be empowered to hold such unbridled powers provided by the provision.
The bench also sought to address the complex issue by deriving the 'original intent' of the legislature in enacting the 1951 Act. Chief Justice YK Sabharwal heading the Bench said,<b> "Because you were permitted to insert Article 31(B) in 1951 since the standards of judicial review came to be set only in 1973, are you entitled to insert whatever you want in 31(B). Do not the citizens have any right to challenge on the ground of violation of fundamental rights."</b>
Senior advocate Soli J Sorabjee, arguing on behalf of Tamil Nadu, which inserted its legislation granting 69 per cent reservation, said, <b>"Fundamental rights cannot serve as a cause of action for invoking judicial review under Ninth Schedule." He contended that 31 (B) creates a 'legal fiction' by which violation of fundamental rights as a ground for challenge is made unavailable though it exists in the Constitution.</b>
But the court could not get a clear response from the Centre as to what standard of adjudication needs to be applied by it in a case, if the Parliament decides to keep the judiciary's hands off by placing a controversial law in Ninth Schedule. Here, <b>the S-G argued that there are no fetters placed on the power of Parliament to keep adding any law to the Ninth Schedule. </b>
<b>Making it clear that the original intent of the legislature was not to protect land reform laws alone but an overall protection to any law placed under the Schedule, he maintained there was no change in position </b>
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