New Delhi: Inclusion of the Tamil Nadu Reservation Act in the Ninth Schedule of the Constitution to keep it beyond judicial review is unconstitutional, senior counsel K.M. Vijayan argued before a nine-judge Bench of the Supreme Court on Tuesday.

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 scrutiny.

Supplementing senior counsel Fali Nariman's arguments, Mr. Vijayan said that as the Tamil Nadu Act was inserted into the Ninth Schedule in 1994, after the 1973 Keshavanand Bharti case judgment, the inclusion would not take away the powers of judicial review. In that judgment, the court proclaimed that judicial review was a basic structure of the Constitution. Mr. Vijayan said the Ninth Schedule could not be used as a device to include all species of law other than the one saved under Article 31-A (saving of laws providing for acquisition of estates, etc.) Since the Tamil Nadu Act was not passed under Article 31-A, it could not be included in the Ninth Schedule.

One-time measure

In his written submissions, Mr. Vijayan, representing Voice, which had challenged the validity of the Act, said the Ninth Schedule was a one-time measure to save 13 Acts specified at the time of introduction of the Ninth Schedule in order to validate these laws from challenge. Article 31-B was a specific provision to validate laws passed under the saving clause of Article 31-A, which were invalidated.

Counsel said the inclusion under the Ninth Schedule was wrongly understood as a provision to protect an Act, which was not invalidated from the purview of challenge.

The Tamil Nadu Act was a fraud on the Constitution, he contended. "When as much as 94 per cent of the population is declared a reserved category, the reservation becomes a meaningless exercise abusing the constitutional protection of social justice." The inclusion of this law under the Ninth Schedule to keep it beyond judicial review was impermissible.

Earlier, Mr. Nariman said even laws which were not struck down would per se damage or destroy the basic structure of the Constitution. There was no justification for blanket inclusion of laws in the Ninth Schedule. Any law included in this Schedule after April 24, 1973 would have to be examined separately for its validity/invalidity with reference to one or more of the fundamental rights as if it was not under the protective umbrella of Article 31-B.

"The Ninth Schedule is overpopulated and it needs family planning. The intention of the Ninth Schedule is to silence the courts by putting any enactment in its bag."

The Bench intervened and said, "Certain laws like the one relating to reservation or education cannot be kept away from judicial review on the touchstone of equality before law."

"Incompatible"

Senior counsel Harish Salve said the validity of amendments to the Constitution would have to be adjudged by applying the direct impact and effect test.

Parliament's power to amend the Constitution at will, with the requisite voting strength, so as to make any law that transgressed fundamental rights would be incompatible with the basic structure of the Constitution.

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