01-12-2007, 01:34 AM
more details and what it mean -
<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>Judiciary declares its supremacy </b>
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,<b> 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.</b>
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.
<b>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.</b>
Noting this dangerous trend, the Bench noted, <b>"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."</b>
<b>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". </b>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.
<b>Judiciary Versus Legislature </b>
<b>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 </b>
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<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>Judiciary declares its supremacy </b>
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,<b> 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.</b>
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.
<b>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.</b>
Noting this dangerous trend, the Bench noted, <b>"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."</b>
<b>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". </b>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.
<b>Judiciary Versus Legislature </b>
<b>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 </b>
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