Saturday, January 13, 2007

Supreme Court Strikes Down The Ninth Schedule

In what must be a shock to the political system, the Indian Supreme Court has blocked a measure extensively used by politicians to implement their political agenda. In a landmark ruling, a constitutional bench of the Supreme Court has declared that the protection promised by the Ninth Schedule of the Constitution is over. All laws put into the 9th schedule of the constitution after 1973 (when the Supreme Court declared that the basic structure of the constitution cannot be altered) are now subject to judicial review. If they are contrary to fundamental rights, they are liable to be struck down.

This is a very important judgment from the perspective of reining in the legislature gone wild. As we have seen in a number of past cases, if there is a push towards a certain legislative agenda, and it has a populist appeal, then no political party wants to be seen opposing it. Hence such a measure gets passed easily. Quite a few of these do not measure up to a legal review, and the government would always promise to put such agendas into the 9th schedule so that no one can challenge it. Such a path is no longer available, thus bringing in a measure of objectivity to laws. After all, if the 'esteemed' legislators know that their laws pandering to populist appeal are subject to review, they would be more mindful of the rights of the minority opinion. To take an example, the TN reservation bill where reservations are more than the 50% limit set by the court, and the Delhi sealing laws.

If one considers the Delhi sealing laws, the Government is trying to bring in a law to enable continued violation of the present laws, even after several adverse judgments. So what does the government do? You guessed right. It stated that it would bring the anti-sealing laws into the 9th schedule to overcome the adverse court judgments.
This is an example of the government being so much influenced by its interests that it is trying to push something that has been ruled against by the court.

There are many arguments towards the legislature being the final will of the people and the courts not respecting that. Such arguments are pushed by those who do not understand the nature of what builds a country. In countries around the world, an active judiciary is the one that is the last appeal for citizens. For minorities being oppressed by a majority, the court is the one that upholds their rights and protects them.

In our system of Government, all the institutions derive their power from the Constitution. The legislature makes the laws, the executive (Government) enforces the laws and the judiciary is the one who decides when the system of laws and acts are in accordance with the constitution. The 9th schedule seeked to turn this system on its head.

And how did the 9th schedule actually emerge? It was not part of the constitution as written by the makers of the constitution. It was added later as the government felt that the laws being made for land reform could be construed as being against fundamental rights of citizens. I repeat - it is not part of the constitution as written by the framers. Like any other Act or law made thereafter, it is subject to judicial review. In an ideal world, the laws made by the legislature should be good in law; but in practice, they are not always like that. Often, feelings derived from populism dictate the passing of certain laws. Such an event is now less likely to happen.

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posted by Ashish Agarwal @ 12:29 AM