INDIA BUSINESS WORLD - FEBRUARY 2007
The Month that was ...

SUPREME COURT CAN SCRUTINISE ANY LEGISLATION

Chief Justice of India K G Balakrishnan has asserted that there is no limit to judicial review and that any parliamentary legislation can be challenged in the courts. The statement, which came during an interview to a private news channel, is a clear signal to the government that any attempt to bring in populist laws that tinker with the basic structure of the constitution will attract judicial intervention.

Mr Balakrishnan's comments are an extension of the recent judgement of the Supreme Court, delivered by a bench headed by his predecessor Y K Sabharwal, on laws included in the ninth schedule. The court had on January 11 ruled that any law put under the ninth schedule after April 24, 1973, providing immunity from legal challenges could be scrutinised by the judiciary if it violated fundamental rights enshrined in the constitution.

The new Chief Justice of India also made a strong case for independence of the judiciary, saying that the proposal to make it mandatory for all judges to annually declare their wealth and assets or have a committee of laypersons probe the conduct of judges, was just not acceptable to any self-respecting judge. While welcoming the proposed national judicial council intended for enforcing judicial accountability, Mr Balakrishnan, however, rejected the idea of involving any lay persons in the council.

"It is a question of independence of the judiciary. If any other person conducts such an inquiry about any judge, it will cause serious encroachment into the independence of the judiciary. I personally believe if anyone else inquires into the allegations against the judges and imposes punishment, I don't think any self-respecting judge would like it," he observed.

To another question whether there should be compulsory annual declaration of their wealth and assets by judges, the CJI again remarked, "No self-respecting persons will accept it."

Justice Balakrishnan, when probed on the likely fate of the challenge pending against the TN legislation providing 69% reservations, clarified that nobody should jump to any conclusions that the legislation providing for 69% reservations in Tamil Nadu would be struck down in view of the apex court's historic ruling in the ninth schedule case. "We cannot say whether the challenge will be sustainable," he said.

To another query on the Centre's attempt to ignore the October 2006 judgement in the Nagaraj case wherein the apex court had asked the government to exclude the creamy layer from the reservation benefits, Justice Balakrishnan hinted that any such disobedience of its orders could invite contempt proceedings. "If the government is not complying with any judgement, contempt of court (could follow). The affected parties should come to us, then the matter will be considered on the judicial side," the CJI said.