INDIA BUSINESS WORLD - OCTOBER 2006
THE MONTH THAT WAS...

BENCH LIVID AT MISUSE OF NINTH SCHEDULE

   THE political class' itch to duck the judicial process by putting “favourite legislations” within the Ninth Schedule came in for a sharp attack from the Supreme Court on Monday. Chiding the government, the apex court said that instead of correcting the defects of invalid laws, the tendency now was to extend the laws under the “protected umbrella” of the Ninth Schedule of the Constitution.

   This is being done mainly to make the court take its “hands off”, said a nine-judge Constitution bench, Chief Justice Y K Sabharwal on the first day of hearing a bunch of petitions challenging the legality of such inclusions.

   Accepting the plea of senior counsel Fali S Nariman, the bench remarked that instead of amending invalid laws, the legislature was “trying to revive them.” The bench observed that even in case of an ordinary law, it has to be first tested and examined by a body before coming into effect. If that won't done, the danger was that even an ‘illegal law' could attain legality.

   Mr Nariman, who appeared for I R Coelho, challenging the Tamil Nadu government's reservation law of 69% quota for Backward Classes, as against the SC's capping of the quota at 50%, said that the legislature's attempts to use the Ninth Schedule for circumventing the judicial process could have major ramifications. He even went on to say that if this trend was not checked, the political class could use the Ninth Schedule to curtail the right to life — the most basic of the Fundamental Rights.

   The Ninth Schedule, Mr Nariman said, was conceived for a specific purpose — to protect the agrarian reform laws from judicial intervention. But in 1973 the court had made it clear that no law can be implemented if it was struck down by the court on the grounds that it violated the basic structure.

   In other words, the Ninth Schedule cannot be used for circumventing judicial scrutiny. Mr Nariman, who questioned the political class' anxiety to invoke Article 31B to make frequent interventions in the Ninth Schedule, said the Article has outlived its utility.