The Hindu : National : Inclusion is to remove uncertainty: Sorabjee

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Thursday, Nov 02, 2006
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Inclusion is to remove uncertainty: Sorabjee

Legal Correspondent

Soli Sorabjee

New Delhi: There are no fetters on Parliament to include laws in the Ninth Schedule (Article 31-B) of the Constitution and such inclusion cannot be subjected to judicial scrutiny, the former Attorney-General Soli Sorabjee maintained in the Supreme Court on Wednesday.

Appearing for Tamil Nadu, he said: "The effect of Article 31-B is to remove a fetter on the power of Parliament to pass a law in violation of fundamental rights. On account of Article 31-B, cause of action for violation of fundamental right is not available because the fetter placed by Part III of the Constitution on legislative power is removed and is non-existent. Non-availability of cause of action based on breach of fundamental right cannot be regarded as exclusion or ouster of judicial review."

Mr. Sorabjee said: "Article 31 B has stood the test of time and successfully weathered constitutional challenges. It is part of our Constitution and was validly enacted in compliance with the requirements of Article 368. The same people who enacted the Constitution and the chapter on fundamental rights after full deliberations enacted article 31 B. It was not enacted by a motley conglomeration in order to deprive the people of fundamental rights."

One of the reasons for putting an Act in the Ninth Schedule was to remove uncertainties about its validity arising out of forensic challenges of divided judicial pronouncements and to prevent time-consuming litigation which would impede speedy and effective implementation of the statute in question.

"There is no warrant to assume that Acts are put in the Ninth Schedule with the sole purpose of preventing judicial scrutiny. That would be attributing mala fide to Parliament, which is not permissible. Above all, judicial review and scrutiny is always available in respect of the basic condition which an amendment has to satisfy, namely that it does not damage or is violative of the basic structure of the Constitution."

Mr. Sorabjee did not agree with the argument that Article 31 B had become redundant. "Occasions may well arise in future to insert laws in the Ninth Schedule because of possible challenge in courts, divergent judgments and the time and resources expended on litigation."

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