The Hindu : National : No standards needed for IX Schedule insertion: Centre

Online edition of India's National Newspaper
Thursday, Nov 02, 2006
ePaper

National

National

No standards needed for IX Schedule insertion: Centre

J. Venkatesan

Parliament can include any law without curbs

New Delhi: The Centre on Wednesday asserted in the Supreme Court that no standards were required for Parliament to include laws in the Ninth Schedule (Article 31-B) of the Constitution.

Solicitor-General G.E. Vahanvati made this submission before a nine-judge Constitution Bench.

Responsible action

To a question whether there was any test on what Parliament should do, he said: "There is no test. When it does something for inclusion of laws in the Ninth Schedule, Parliament will do so with some responsibility." He did not agree with the contention that Article 31-B was not intended to include legislation other than those covered by Article 31 A (on agrarian or land reform laws.)

Mr. Vahanvati said Parliament in its wisdom could include any law in the Ninth Schedule without restriction and it would be subject to judicial review only if violated the basic structure of the Constitution.

The Bench asked, "Do you mean to say that even if a law violated fundamental rights it cannot be tested legally." He said, "Judicial review is excluded even if it violated fundamental rights subject to the test of violation of the basic structure doctrine." Elaborating, he said, "A particular fundamental right may not be a basic feature of the Constitution. For example, Article 19 (1) (f) as well as Article 31 was deleted from Part III of the Constitution [relating to fundamental rights]" and the court held this not part of the basic feature.

The Bench wondered, "Can you (government) insert laws in 31-B without any standards even if the citizen was to lose his right of challenge of violation of fundamental right?" Mr. Vahanvati answered in the affirmative and said that as long as such insertion served the public interest it would be permissible.

Taking the point further, the Bench asked, "Can the rights of citizens be done away with merely by giving a legislative declaration and including a law under the Ninth Schedule." He said if something was done in violation of the basic feature theory then the court could interfere.

The Bench said, "It will be possible for the government to contend that the basic features of sovereignty, federalism and separation of powers are not affected and therefore such law cannot be legally tested."

The Solicitor-General conceded, saying, "by including laws in the Ninth Schedule rights are bound to be affected." The Bench said, "What you say is judicial hands off to laws put in the Ninth Schedule whether they are liable to be struck down or not."

The Bench reminded him that judicial review could not be kept away from certain laws on reservation or education. "In the Mandal case the [apex] court put a cap of 50 per cent on quotas. Tamil Nadu went on to enact a law to provide for 69 per cent quotas. Can it not be tested on the essence of equality before law?"

The judges said, "How do you [Centre] justify the inclusion of the Tamil Nadu quota Act in the Ninth Schedule to the extent of its [causing] damage to the fundamental rights? The impact of the law has to be seen. Tomorrow another State may say 90 per cent quotas. Here the de facto equality comes into play."

Essence of equality

Mr. Vahanvati said the Tamil Nadu law could be tested on the essence of equality and adjudicated on the basis of the basic feature theory. The Bench asked, "Is it [enactment of the quota law by Tamil Nadu] not a fraud on the Constitution particularly after this court put a cap of 50 per cent?" He said, "No, certainly not."

The Solicitor-General maintained that the possibility of abuse could not be a ground for testing the validity of a constitutional provision. "Fear of perversion is no test of power. In the Keshavananda Bharati case, a majority of seven judges held that merely because wide powers were conferred, it would not render a constitutional power unconstitutional."

Printer friendly page
Send this article to Friends by E-Mail

National