New Delhi, January 11
A day after upholding Parliament’s power to expel its MPs, the Supreme Court in another landmark judgement today ruled that it has no absolute immunity to frame laws violating the basic structure of the Constitution and then invoke the provision of the Ninth Schedule to protect these from judicial scrutiny. According to the court, it has full power to examine the validity of such laws and strike these down if they violate the basic rights.

Rejecting the argument of the government that the court has no role to play once a law is placed in the Ninth Schedule, a nine-judge Bench, headed by outgoing Chief Justice Y.K. Sabharwal, said, “This court, being bound by all provisions of the Constitution and also by the basic structure doctrine, has necessarily to scrutinise the Ninth Schedule laws.”

It said if any of such laws violated the fundamental rights under Articles 14 (equality), 15 (religious, caste and race discrimination), 19 (freedom of speech), 21 (protection of life and liberty), these are deemed to be striking at the root of the basic structure of the Constitution and apparently open to judicial review, even if put in the Ninth Schedule.

The judgement set at rest the raging debate in political circles in the wake of a demand that the laws on certain contentious issues like reservation and sealing in Delhi be put in the Ninth Schedule to take these out of bound for the apex court to adjudicate upon these.

The judgement improved upon the famous Keshwananda Bharti case decision of 1973 with the Bench unanimously concluding that the 29th amendment of the Constitution (in 1972) making provision in Article 31-B against court’s invalidation of certain laws by putting these in Ninth Schedule, would not apply to any legislation that violated the enumerated fundamental rights. The verdict in the Keshwananda Bharti case was by a 13-judge Bench with 7-6 majority.

The Bench said, “The power to grant immunity (to Parliament on the Ninth Schedule laws), at will, on fictional basis, without full judicial review, will nullify the entire basic structure doctrine. The golden triangle rights under Articles 14, 14 and 19 read with 21, formed basic feature of the Constitution as these provisions stand for equality and the rule of law.”

Any challenge made to such laws, has to be tested “on the touchstone” of the basic feature reflected in Article 21, read with Articles 14, 15 and 19, and the principles laid down there under, the court ruled. “Justification for conferring protection, is not blanket on the laws included in the Ninth Schedule by the constitutional amendments,” the court said.

Tightening the constitutional provisions on the Ninth Schedule laws, it said any legislation passed after 1973, if violated the basic fundamental rights, was open to challenge in the court, irrespective of it being placed in the Ninth Schedule.

Since over 30 petitions had been filed against such laws, including the Tamil Nadu Reservation Act that raised the ceiling of quota from 50 per cent to 69 per cent, land reform laws passed by it and West Bengal and Gujarat and certain property-related laws by some other states, the court said a three-judge Bench would now decide these petitions on merits as per the laid-down parameters.

But the Bench clarified that if the apex court had already given validating verdict on placing of any law in the Ninth Schedule in between, the parameters laid down today would not affect that order.