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Jethmalani: quota law tones up Constitution

J. Venkatesan

Protection of weaker sections is a basic feature

New Delhi: The Tamil Nadu Reservation Act providing for a 69 per cent quota does not violate the basic structure of the Constitution and hence cannot be subjected to judicial review, the former Union Law Minister and senior counsel Ram Jethmalani told the Supreme Court on Thursday.

Appearing for Tamil Nadu, he told a nine-judge Constitution Bench, "the law [in fact] strengthens the basic feature of the Constitution" which was to raise the educational, social and economic standards of weaker sections.

The Tamil Nadu law waschallenged on the ground that the creamy layer was not excluded and that reservation exceeded the 50 per cent ceiling fixed in the Indra Sawhney (Mandal) case, counsel said. "Whether there has been a breach of the basic features of the Constitution in this particular case is not a matter to be decided by this [nine-judge] Bench."

At this juncture, Chief Justice Y.K. Sabharwal made it clear that the Bench was not going to decide the validity of the inclusion of individual laws and that it was concerned only with issues of Ninth Schedule (Article 31-B).

Following this observation, Mr. Jethmalani did not stress this point further. But in his written submissions, he said, "protection of the weaker sections by special provisions made for their benefits is a basic feature of the Constitution. It carries out the pledge of the freedom movement to wipe out centuries of social oppression and humiliation and the resulting trauma of serious damage to the intellectual endowment of major sections of the society. The Tamil Nadu statute cannot be assailed on the suggested grounds."

"Creatures, not masters"

Counsel said the Constitution was created by the people and their representatives. Though judges had a very important role to play in a written Constitution, particularly one which contained basic rights of the citizens, they were creatures, and not masters, of the Constitution. As far as possible, in a complex matter of determining the basic features and whether a particular law violated the basic features, the court must refrain from exercising its power of judicial review.

He said "when two-thirds of the members of Parliament, who are elected representatives of the people, and the President of India decide to put a law in the Ninth Schedule, a Bench of five, seven or nine judges, who had not gone through the democratic process, must exercise the power of judicial review with the utmost discretion. The will of the people should prevail. Judicial review is not a power to be lightly exercised. Bear it in mind. Politicians have a low degree of acceptance. People are behind the court and whatever said by the court is accepted by the people."

The Bench retorted saying, "therefore greater responsibility [is] on us. That goes without saying. We know what is the basic structure of the Constitution. We are aware of our responsibility. You don't have to remind us. Whatever we do, we do it with the utmost caution."

The Bench told counsel, "whatever you said about the judges equally applies to the two-thirds majority of members of Parliament."

Mr. Jethmalani said, "Whatever judgment comes from you must be unanimous."

Pitfalls in compromise

The Bench replied: "Whatever the majority, judgment is a judgment. For a unanimous judgment you have to make a compromise. If too much compromise is made there are pitfalls. Various factors go into a judgment."

Quoting earlier judgments, counsel said Article 31-B was already held valid and it did not require any further review. "In exercising the power of judicial review of constitutional amendments on the basis of the basic structure doctrine, the court must start with and proceed on a strong presumption that Parliament in exercise of its constituent powers was aware of its limitations and in passing the amendment it has made its determination that the amendment does not violate the basic structure doctrine."

He said: "The legislative judgment, express or implied, is entitled to the highest respect and can be reversed only if the court is convinced that no reasonable body of men can arrive at such a conclusion."

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