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Reclaiming jurisdiction

The Supreme Court's decision on subjecting laws placed in the Ninth Schedule of the Constitution to judicial review — on the ground of violation of fundamental rights forming part of the basic structure of the Constitution — is, in a sense, a natural institutional reaction to the ouster of jurisdiction in the early years of the republic. It was in 1951 that Parliament through the first amendment to the Constitution carved out the Ninth Schedule as an enclave where laws could be placed beyond judicial challenge on the ground of violation on any of the fundamental rights. That move was a reaction to the spate of challenges to land reform laws. Originally, the Schedule was intended to cover land reform and nationalisation laws besides laws to tackle concentration of economic power, and was only to be used sparingly. Yet, as the court has pointed out in its latest decision, the list expanded from 13 to 284, including many State laws. It is difficult to fault the court's reasoning that under the constitutional scheme, Parliament does not have a carte blanche to override all the fundamental rights, which is what the Ninth Schedule allows it to do. If in the early years of the Constitution the courts had conceded to Parliament an unfettered right to amend it, the Kesavananda Bharati case in 1973 introduced the doctrine that the basic structure and framework of the Constitution would be beyond the amending power. Following this line of reasoning, the nine-judge bench of the Supreme Court has now held unanimously that laws placed in the Ninth Schedule after 1973 are subject to judicial scrutiny on whether they violate fundamental rights forming part of the basic structure.

It needs to be noted that the standard of judicial scrutiny for the Ninth Schedule laws would be different from the standard applied to other laws — for not every fundamental right, but only those that form part of the basic structure can be invoked against them. In the immediate period after Kesavananda Bharati, there was some confusion over whether any of the fundamental rights could be regarded as forming part of the basic structure. Subsequent decisions, including the latest judgment, have made it clear that while some fundamental rights such as the right to property would not be part of the basic structure, core values including the right to life and liberty under Article 21, the right to equality under Article 14, equal opportunity under Article 15, and the freedoms, including the freedom of speech under Article 19, are part of the basic structure along with other features like federalism, separation of powers, secularism, and judicial review. One immediate fallout of the judgment would be in the area of reservations where Article 14 is often invoked. The Tamil Nadu law providing for 69 per cent reservations would appear to run counter to the 50 per cent limit set by the Supreme Court, which seems to strike an eminently sensible balance between the right to equality and equal opportunity on the one hand, and affirmative action for the disadvantaged on the other. Overall, the Supreme Court's decision on the Ninth schedule would seem to be something that Parliament and the State legislatures can live with.

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