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Friday, Nov 03, 2006
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Judicial review not absolute: counsel

Legal Correspondent

``Article 31-B of the Constitution is a constitutional device and there is no infirmity in it''

T.R. Andhyarujina

New Delhi: Article 31-B of the Constitution (Ninth Schedule) is a permissible constitutional device and there is no infirmity in it, senior counsel T.R. Andhyarujina said in the Supreme Court on Thursday.

Appearing for Tamil Nadu in the land reforms matter, he said Article 31-B would be subject to judicial review only on the touchstone of the basic structure doctrine.

"If the inconsistency of a protected Act [beyond judicial review] with a particular fundamental right is only its abridgment [e.g. Article 14] and if it does not abrogate or destroy or damage the fundamental right, Article 31-B will give protection to the inconsistency."

Counsel said the Constitution itself had provisions for specifically excluding judicial review in certain matters.

"It shows that judicial review is not in absolute terms and there is a necessity to limit it in certain areas."

In every case "where a constituent power excludes judicial review, the basic structure of the Constitution is not abrogated."

The exclusion from judicial review of specified Acts in the Ninth Schedule was not done by the State Legislatures but was a subject matter of consideration by Parliament.

"No sense of irresponsibility can be ascribed or attributed to the representatives of the people. Nor can a power be denied on the possibility of its abuse."

Amending power

Counsel pointed out that up to 1973, for over 23 years with the full amending power, no abuse of power was said to have taken place.

An analysis of the Ninth Schedule Acts showed that the bulk of the Acts related to land reforms.

Even in respect of other Acts, it could not be said any of them was oppressive or destroyed the personal liberties of citizens.

Constituent power

Earlier, the former Attorney-General Soli Sorabjee concluded his arguments saying, "Article 368 (1) clearly indicates that amendments to the Constitution can be made from time to time."

Inclusion of Acts in the Ninth Schedule "is by virtue of the exercise of constituent power under Article 368. There is no warrant at all in law to imply a limitation on the exercise of constituent power with regard to Article 31-B."

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