New Delhi: Once a piece of legislation is included in the Ninth Schedule of the Constitution, viz. Article 31-B (validation of certain Acts and Regulations), it gets protection and the scope for judicial review of such law and its inclusion is very limited.

The Centre has stated this in its affidavit filed in the Supreme Court, which is to have a fresh look at the scope and powers of Parliament to include a law in the Ninth Schedule even after it is struck down. The court will examine the validity of the inclusion of the Tamil Nadu Reservation Act and several other State and Central legislation in the Ninth Schedule.

A nine-judge Constitution Bench will hear from October 30 whether an earlier five-judge Bench decision that "all Constitution amendments by which additions were made to the Ninth Schedule on or after April 24, 1973 [when judgment in the Keshavanand Bharti case was delivered] will be valid only if they do not damage or destroy the basic structure of the Constitution is correct or not."

Grounds of reference

The hearing is a sequel to a reference made in 1999 by the five-judge Bench. The grounds on which the matter was referred to nine judges are: "judicial review is a basic feature of the Constitution; to insert into the Ninth Schedule an Act which, or part of which, has been struck down as unconstitutional in exercise of the power of judicial review is to destroy the basic structure of the Constitution; to insert into the Ninth Schedule after April 24, 1973, an Act, which, or part of which, has been struck down as being violative of the fundamental rights conferred under the Constitution is to destroy or damage its basic structure." Claiming that no further examination of the issue was necessary, the Centre said that the object of introducing Article 31 B was to achieve the constitutional objectives of social equality. " A Legislature must have the power to bring about broader social equality even if it be at the expense of particular individual freedoms. Otherwise, the state fails to do what it has been commanded to do by the Constitution. This does not mean that the Constitution is changed; in fact, it is made stronger."

The Centre said Article 31 B was a protective umbrella to all Acts "which are included in the Ninth Schedule, no matter of what character, kind or category they may be. Article 31-B empowers Parliament to include in the Ninth Schedule such laws as it considers fit and proper to include therein."

It said "when a statute is included in the Ninth Schedule, the vice or defect of unconstitutionality of the legislation on the ground of infringement of fundamental rights is cured. There is no necessity of a separate validating Act taking away the basis of the judgment before the Act is put in the Ninth Schedule."

The Centre asserted that Parliament had the power to include in the Ninth Schedule a law which was struck down on the ground of violation of fundamental rights. For, the moment it was included in the Ninth Schedule it would be cured of the vice/defect and no challenge would be available to such statute. "If a law is included in the Ninth Schedule the challenge to it has to fail."

The affidavit said: "A Constitution amendment which incorporates a [piece of] legislation in the Ninth Schedule has to be tested on the ground whether it violates the basic structure of the Constitution. If it violates the basic structure then such an amendment would be ultra vires the powers provided by Article 368 [power of Parliament to amend the Constitution] and therefore invalid and the protection provided under Article 31 B would not be available."

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