Ninth Schedule: Nariman challenges validity of Art 31 (B)

New Delhi, Oct 30 (UNI) Senior counsel F S Nariman, opening the arguments on behalf of petitioner challenging the constitutional validity of Article 31 (B), giving power to Parliament to put any law or amendment in Ninth Schedule of the Constitution to debar judicial scrutiny, told the nine judges' constitution bench of the Supreme Court, that Parliament cannot debar the judicial review lock, stock and barrel.

Mr Nariman also contended before the nine judges bench headed by the Chief Justice Y K Sabharwal that it was not be permissible for Parliament to put all laws lock, stock and barrel in the Ninth Schedule just with a view to debar the court from examining the validity of a particular law.

Other judges of the bench are Justices Ashok Bhan, Arijit Pasayat, B P Singh, S H Kapadia, C K Thakkar, T K Balasubramanyan, Altamas Kabir and D K Jain.

Mr Nariman also told the apex court that till 1973 only laws related to land reform were put in the Ninth Schedule and nobody ever challenged that Act of Parliament in taking the agrarian laws from out of the perview of the interpretation of such laws by the courts.

After 1973, Parliament also started putting other laws in the Ninth Schedule, to make them immune from court examination.

At one stage, the Chief Justuce remarked, ''As per Article 368 of the Constitution, there is a limitation and if a law is destructive of the basic structure of the Constitution, then it cannot be placed in the Ninth Schedule.'' The court also made queries on whether the government can revive a law which has been struck down by the court as unconstitutional, by putting the same in the Ninth Schedule, that is to say 'reviving a dead body'.

Mr Nariman further submitted that a law struck down by the apex court as invalid has to be re-enacted by Parliament and only then can it be revived and such law cannot be revived by simply putting it in ninth schedule.

The court wanted to know from the petitioners' counsel whether mode prescribed in law has to be followed or not.

Mr Nariman remarked in lighter vein ''There is no procedure in the state to apply mind.'' He also told the court that till date there are 285 laws put in the Ninth Schedule to avoid judicial scrutiny.

He also told the bench that not only a constitution amendment but even a declaration by the legislature of a policy matter can be taken out of the ambit of judicial scrutiny by using the Ninth Schedule and hence, the state and Parliament virtually enjoy unfettered power to avoid judicial examination or interpretation of any law they (read parliament and government) deem fit.

According to Mr Nariman Article 31 (B) of the Constitution is, therefore, violative of the basic structure of the constitution as no unfettered power can be given to the government or the legislature to act according to their free will irrespective of the fact, whether these actions were in accordance with the constitutional provisions or not.

Arguments are still continuing.

UNI AKS/SC LL RP DB1311