Thursday, March 29, 2007

Ninth Schedule: Judiciary versus legislature

The Supreme Court ruled recently that laws placed in the Ninth Schedule of the Constitution were open to judicial review if they were violative of fundamental rights and infringed the basic structure of the Constitution. This has been taken to mean that the Tamil Nadu Reservation Act, for instaance, that provides for 69% reservations (that is, in excess of the 50% permitted by the SC) could come up for review.

Rakesh Shukla, writing in EPW (February 17-23) has some interesting comments on the SC judgement. He makes two points. The SC has not really stood up for fundamental rights on crucial occasions. Its objections relate to attempts to enforce directive principles, which enforcement is seen to violate fundamental rights, notably the right to property.

The constitutionality o fthe first preventive detention law of independent India allowing for detention without trial was challenged by A K Gopalan, a leading member of the communist movement. The Supreme Court held that the detention law need not satisfy the test of reasonableness and upheld the legislation.

In the Emergency era of 1975-77, the apex court upheld the suspension of the most fundamental of rights and declared that habeas corpus petitions could not be filed for the deprivation of life and liberty. The Terrorism and Disruptive Activities (Preventive) Act (TADA) making confession to the police admissible was upheld in 1994. The Armed Forces (Special Powers) Act (AFSPA) giving the power to shoot to kill with impunity was declared constitutional in 1997. The Prevention of Terrorism Act (POTA) was upheld as valid in 2004. Notwithstanding the stated concern for liberties in judgments, the judiciary seems to have failed the people on
every occasion that called for a verdict upholding fundamentalrights in the face of a draconian law

...Directive principles requiring the state to secure adequatelivelihood, equitable distribution of material resources and prevention of concentration of wealth and Part III dealing with fundamental rights, are both part of the Constitution and are best interpreted harmoniously.It is the court which seems to have chosen to create a conflict between directive principles and fundamental rights. The nationalisation of banks was done with the object of public control of national finance.The Supreme Court struck it down as discriminatory. The abolition of privy purses to erstwhile rulers of princely estates,a move clearly in tune with
a democratic polity, was held to be a violation of fundamental rights

On one of the TV channels, I read that the SC is due to pronounce on reservation for OBCs in central universities today. The petitioners have questioned the basis for 27% reservation. If the SC upholds the challenge, we are in for interesting times.

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