SC told intent of Article 31 (B) to silence court

New Delhi, Oct 31 (UNI) The Supreme Court was told today that the intent of Article 31(B) was to silence the court and not to make any constitutional amendment and hence Article 31(B) was per se violative of the basic structure of the Constitution.

Senior Council S S Nariman appearing for some of the petitioners pleaded before the nine judge constitutional bench headed by the Chief Justice Y K Sabharwal said that no law can be provided blanket protection by putting the same in the Ninth Schedule of the constitution.

At one stage the Chief Justice remarked, "fundamental scheme of the constitution is that all laws must be subject to judicial review.

Mr Nariman also contended that a law which has been shut down by this court as unconstitutional cannot be revived even by a constitutional amendment and no post 1973 law can be put in Ninth Schedule to avoid judicial scrutiny of a law.

Senior Council Harish Salve appearing for some petitioners challenging some Gujarat state enactments contended before the court that the very existence of a power in Parliament to amend the constitution at will(with the requisite voting strenth)so as to make any kind of laws that transgress Part Three would be incompatible with the basic structure of the constitution.

Mr Salve also contended that in any event, even an amendment of the Ninth Schedule--is possible without amending in law the entirety of Article 31(B)--would be tainted by the same vice. The recognition of the power in Parliament to continue to amend the constitution at will to bypass Part Three in respect of any law would be incompatible with the doctrine of basic structure .

Other judges on the bench hearing the batch of petitions challenging the validity of Article 31(B) of the constitution giving powers to the government and the legislature to put any law in Ninth Schedule to overrule the judgements of the court and also to take away the powers of the court to test the validity of the law are, Justices Ashok Bhan, Arijit Pasayat, B P Singh, S H Kapadia, C K Thakker, P K Balasubramanyan, Altamas Kabir and D K Jain.

Mr Salve further contended that the very existence of Article 31(B) is untenable as it confused the nature of the basic structure doctrine with the constitutional limitations contained in Article 13.

He also submitted that Article 31(B) created the third legal regime as it lays down that laws passed by simple majority would be tested on the anvil of Part Three while constitutional amendment shall be tested on the touchstone of the basic structure but enactments of laws which violate Part Three would not be subjected to any judicial review.

Thirdly laws passed by two-third majority would be tested on the touchstone of basic structure and such legal regime would be in compatible with the basic structure.The arguments shall continue tomorrow.

UNI AKS/SC SP RP