Laws in 9th Schedule after 1973 open to judicial review: SC

In a landmark judgement with far reaching implications, the SC ruled that any law placed under the Constitution's 9th Schedule after 24th April, 1973 providing immunity from legal challenges are subject to scrutiny of courts.


In an unanimous verdict, a nine-member Constitution Bench headed by Chief Justice Y K Sabharwal rejected Government's claim that certain laws even if they infringed the fundamental rights of citizens cannot be subjected to judicial review, if the legislations were placed under the Ninth Schedule.



The judgement, which came a day after apex court ruled that Parliament's decisions were subject to judicial review, assumes significance in the wake of laws like the one in Tamil Nadu which provides 69 per cent reservations and has placed it under the Ninth Schedule to circumvent judicial review.



The apex court had earlier held that social reservations shall under no circumstances exceed the permissible limit of 50 per cent. To overcome the ruling, the then Jayalalithaa government placed the law under the Schedule.



Several other states had come out with their own laws on land reforms, land ceilings and other local legislations purportedly infringing upon the fundamental rights and had put them under the Ninth Schedule to avoid judicial scrutiny.



The ruling could affect over 250 legislations enacted by the Centre and various states and put under the Schedule.



These include Central Coal Mines Act 1974, Additional Emoluments Act 1974, COFEPOSA Act 1974, Sick Textile Undertaking Act 1974, UP Imposition of Sealing on Land Holdings Act 1974, Orissa Land Reforms Act 1965 and ESMA.



The Bench held that although the Government was entitled to place laws in the Ninth Schedule, such legsislations if they violated the fundamental rights guaranteed under Articles 14, 15, 19, 20 and 21 of the Constitution are liable to be struck down by courts.



An NGO 'Common Cause' had challenged such legislations.



The Supreme Court constituted a nine-member Bench to decide on the constitutional validity of the issue.



The cut-off date 24th April, 1973 has been fixed for the Ninth Schedule as it was on that day a 13-member Constitution Bench of the Supreme Court gave its historic ruling in the Keshavananda Bharti case that Parliament had no power to amend the basic structure of the Constitution.



The Ninth Schedule emanates from Articles 31 A and 31 B which were introduced by the Constitution's (first amendment) Act 1951, with effect from 18th June, 1951, to ensure that certain laws were valid even if it violated the Fundamenal Rights of a citizen.



In other words Parliament arrogated to itself the power to amend the Constitution in any manner it liked, irrespective of the fact whether it overided the Fundamental Rights.



Incidentally, in 1952, the Supreme Court in the Shankari Prasad Singh Deo vs Union of India case held that Articles 31 and 31 B were constitutionally valid amendments.



Since a constitutional amendment was an exercise of constituent power, Fundamental Rights under Part III were not immune from such amendment. The power to amend is without any exception, whatsover, the apex court had held in that case.



The effect of that judgement was that Article 13 (2) which prohibited the State from making legislations abrogating the Fundamental Rights would not apply in the case of laws placed in the Ninth Schedule of the Constitution.



Secondly, it was held in the said judgement that the powers of the High Court and the Supreme Court were not in any manner infringed and all that was done by insertions of Articles 31 A and 31 B was that a certain class of cases had been excluded from being given the protection of Fundamental Right.



However, subsequently in 1967 in the Golak Nath's case by a majority opinion a 11-member Bench of the apex court ruled that Parliament had no power to amend Part III of the Constitution such as to take away or abridge Fundamental Rights.



The view was further strengthened in the Kesavananda Bharti case and the Indira Gandhi vs Raj Narian case wherein it was held that Parliament's power to make laws and amend the Constitution cannot take away the Fundamental Righs or to completely change the fundamental features of the Constitution so as to destroy its identity.