Posted: 31 October 2006 at 8:46pm
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Can quota laws be put in 9th Schedule?
[ 1 Nov, 2006 0115hrs ISTTIMES NEWS NETWORK ]
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NEW DELHI: Anguished over the indiscriminate use of the constitutional provision to insulate laws from judicial scrutiny, Supreme Court on Tuesday posed the crucial question can laws providing for quota, even if they appear to violate fundamental rights, be put in the Ninth Schedule?
The question assumes importance as the court's decision on the complex but important issue will determine the fate of the Tamil Nadu Reservation Act providing for 69% reservation to backward classes, which is in excess of the 50% ceiling mandated by the apex court.
Moreover, it will also have a significant bearing on the course of action of Parliament and legislatures, which are thinking of inserting laws providing for reservation to OBCs in central educational institutions as well as the anti-sealing law in the Ninth Schedule.
The poser from the nine-judge Bench headed by Chief Justice Y K Sabharwal was both to the government, represented by Solicitor General G E Vahanvati, and the petitioners challenging the Article 31B procedure to put any law in the schedule to give it immunity from the danger of being struck down as illegal by courts.
Winding up his arguments, leading lawyer Fali S Nariman appealed to the apex court to interpret the width and play of Article 31B of the Constitution in a manner so as to prohibit its indiscriminate use to insert laws, perceived to be violative of fundamental rights, in the Ninth Schedule and shield it from judicial scrutiny.
The Bench, also comprising Justices Ashok Bhan, Arijit Pasayat, B P Singh, S H Kapadia, C K Thakker, P K Balasubramanyan, Altamas Kabir and D K Jain, said the original intent of Article 31 was to save lengthy and multi-layer litigations over agrarian laws across the country.
That phase is over, it said and sought response to the question: "Can the legislature say that as the education and reservation laws are inviting a lot of litigation, they be also put in the Ninth Schedule?"
That precisely is the point, Nariman continued and said: "Enough damage has already been done to the constitutional scheme of things by putting all and sundry into Ninth Schedule and the court must interpret the provisions to stop further damage to the Constitution."
Senior advocate Harish Salve, while agreeing with Nariman, went a step further and took a radical stand that "Article 31B is not a laundry bag into which all laws, which have a spot on them, be tucked in endlessly".
He said after the declaration by the apex court in 1973 that Parliament's power to amend the Constitution does not allow it to tinker with its 'basic structure', there is no scope for the Ninth Schedule route for laws which are per se violative of the fundamental rights.
The arguments will continue on Wednesday.