Ninth schedule laws not 'absolutely immune' from judicial scrutiny

New Delhi, Jan 11: In a landmark judgement, the Supreme Court today ruled that laws in the ninth schedule of the Constitution do not enjoy ''absolute immunity'' from judicial review.

A nine-judge Constitution Bench unanimously declared that fundamental rights contained in part III of the Constitution form an integral part of the basic structure of the Constitution and any violation or encroachment of these rights has to be examined by the court.

''Any law put in the ninth schedule of the Constitution after April 24, 1973 does not enjoy absolute immunity against judicial review,'' the court held.

The Constitution Bench comprising Chief Justice Y K Sabahrwal and Justices Ashok Bhan, Arijit Pasayat, B P Singh, S H Kapadia, C K Thakker, P K Balasubmanyan, Altamash Kabir and D K Jain also declared that the power of making a law and adjudging its contitutional validity cannot be conferred upon a single organ.

The laws made by Parliament have to be interpreted by the judiciary and their validity must be examined by the court and not by Parliament, the court said.

''It is impermissible to immunise the laws from judicial scrutiny and rights contained in Part III and Directive Principles of State Policy contained in Part IV as they form an integral part of the basic structure of the Constitution and any violation or encroachment of the same must be invalidated by the apex court.''

The apex court said the jurisdiction conferred upon it under Article 32 forms the basic structure of the Constitution and no act of Parliament can take away this power without violating the constitutional provisions. The court agreed with its judgement in the Waman Rao case which said laws put in ninth schedule after April 24, 1973 will not receive full protection.

Declaring Article 31 (B) as valid, the court said in any case of violation, restriction or encroachment upon fundamental rights guaranteed under Articles 14, 15, 19 and 21, the state must justify its action on the touchstone of the doctrine of the basic structure of the Constitution.

The court also directed that all the petitions challenging reservation laws enacted by the Tamil Nadu government and Land Reform Acts as enacted by the Gujarat and West Bengal governments will be placed before a three-judge bench of this court for being decided in accordance with the principles laid in today's judgement.

Tamil Nadu had made laws providing for 69 per cent reservation in admission as well as jobs in violation of the upper limit of 50 per cent fixed by the apex court in Mandal Commission case and these laws have been put in ninth schedule to avoid judicial scrutiny.

Similarly, Gujarat and West Bengal have placed controversial land reform laws in the ninth schedule to debar the court from adjudging their validity.

The court ruled that any abrogation or abridgement of fundamental rights will invite judicial scrutiny to invalidate such laws.

The Supreme Court said any violation of the secular character of fundamental rights will also harm the secular fabric of the country. Commenting on the freedom of press, the court said though this freedom is not specifically provided in the Constitution, it has been read in Article 19(1)(A) of the Constitution. The court also held that any constitutional amendment enacted by Parliament, if challenged on the ground of violation of rights enumerated in Part III of the Constitution, will require judicial elucidation and the same can be challenged before the apex court on the grounds of violation of the basic structure of the Constitution which was propagated and introduced by the 13-judge bench in the Keshavanand Bharti case.

The court also rejected the government's contention that the validity of Article 31(B) was examined in the Keshavanand Bharti case and held that it was never challenged in that case.

Referring to the Jabalpur ADM case and the Indira Nehru Gandhi case, the court said,''The Constitution is a living document and must evolve with the changing circumstances.''

UNI