NEW DELHI: The Ninth Schedule in the Constitution (Article 31-B) introduced by the former Prime Minister Jawaharlal Nehru to keep certain laws beyond the scope of judicial review has outlived its purpose, Fali Nariman, senior counsel, argued before the Supreme Court on Monday.

Relook urged

The court must have a re-look at the scope and powers of Parliament to enact laws and include them in this Schedule, he told a Constitution Bench comprising Chief Justice Y.K. Sabharwal and Justices Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan, Altamas Kabir and D.K. Jain.

Once a law is enacted and included in the Ninth Schedule, it gets protection under Article 31-B (validation of certain Acts and Regulations) and is not subject to judicial review.

One-time measure

Mr. Nariman said that at the time of introduction of Article 31-B, Nehru categorically stated it was only a one-time measure to protect agrarian laws after the abolition of the zamindari system. But now the inclusion of laws in the Ninth Schedule was not restricted to agrarian legislation; all types of laws were included and 285 of them were put in the Schedule.

As judicial review formed part of the basic structure of the Constitution, courts' powers could not be taken away merely because of the inclusion of a law in the Ninth Schedule.

There was a tendency among the political parties to put in this Schedule any law struck down by the court, and getting a two-thirds majority in Parliament was never difficult.

Misapprehension

Mr. Nariman said there was a misapprehension among the parties, which looked upon the court as a monster that would strike down any law. The courts upheld a majority of the laws and only a few were struck down.

"To put a law in the Ninth Schedule for fear of its being struck down is not justified. A situation may come that whenever any law is struck down, immediately it will be given life by putting it in the Ninth Schedule."

It would be impermissible to place an enactment in the Ninth Schedule without the State Legislature concerned re-enacting that law or provision which was struck down. "When political parties act politically, the court has to act judicially. Once a law struck down by courts is put in the Ninth Schedule, you are giving life to a dead body and reviving an enactment held invalid. The court should examine the validity of such inclusions on the touchstone of the basic structure doctrine. Article 31-B is not a vast reservoir to include any law within its ambit."

`Article 31 B totally otiose'

Mr. Nariman said: "Article 31 B has now become totally otiose and cannot be invoked by Parliament to make void laws valid." Every Constitution amendment adding laws to the Ninth Schedule and thus attempting to preclude all challenge to such enactments was not admissible after April 24, 1973, when the Keshavanand Bharti judgment was delivered, proclaiming judicial review as part of the basic structure of the Constitution.

Arguments will continue till Friday.

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