01-21-2007, 01:31 AM
<!--QuoteBegin-->QUOTE<!--QuoteEBegin--> 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 31© 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 31© 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.
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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. </b>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.
<b>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.</b>
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 <i>(it is 13)</i> 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.
<b>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.
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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)
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