The Telegraph
Since 1st March, 1999
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Court rips protective cloak around laws

New Delhi, Jan. 11: A special parliamentary shield to keep certain laws out of the courts’ reach cannot grant them absolute immunity, the Supreme Court today said in a judgment relevant to the current reservation row.

Any law that endangers a basic feature of the Constitution, such as equality, can be struck down by the judiciary even if Parliament lists them under the Ninth Schedule, a nine-judge constitutional bench said.

This means the recent law on reservation in higher-education institutions, already challenged before the apex court, would not get out of the danger zone even if it’s brought under the protective provision.

The Ninth Schedule, introduced in 1951 as the first amendment to the Constitution to shield certain progressive laws such as those on land reforms, put a law out of the courts’ reach even if it flouted a fundamental right.

The apex court judgment means that the immunity would not hold if a law affects those fundamental rights that are part of the Constitution’s basic structure.

The court indicated that these rights include the right to life, free speech and the freedom of the press.

As examples of the core features, the judges cited the principle of equality before the law, the rule of law, judicial review and separation of powers, but said the list was not exhaustive. Whether a basic feature has been endangered would be decided case by case.

On the quota dispute, the court said the general right to equality under Article 14 had to be balanced with Article 15 (4), which allows special provisions for the disadvantaged. So, excessive reservation can be said to destroy the balance, which is a basic feature of the Constitution.

“Article 15 (1) limits the rights of the state by providing that there shall be no discrimination on the grounds only of religion, race, caste, sex, etc, and yet permits classification for certain classes — hence social content exists in fundamental rights as well. All these are relevant considerations to test the validity of the Ninth Schedule laws,’’ the bench said in a unanimous decision.

On freedom of the media, the court said: “In a given case, even abridgement (of the freedom of speech and expression) may destroy the real freedom of the press and, thus, be destructive of the basic structure.”

The court clarified that laws placed in the Ninth Schedule before April 24, 1973 — the day when the apex court’s verdict in the Kesavananda Bharati case took away Parliament’s right to alter the basic structure of the Constitution — would continue to stay immune to judicial review.

Nor would any Ninth Schedule law whose validity has already been upheld be open to challenge again “on the principles declared by this judgment’’.

Transaction and actions already taken, too, are immune from legal challenge.

What this means is that the 1979 Bengal landholdings revenue act now comes under review.

The glare will also be on the 69 per cent reservation in Tamil Nadu, which violates the apex court’s ceiling of 50 per cent.

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