New Delhi, November 1
In a new development on the Ninth Schedule issue, the Centre today conceded in the Supreme Court that there was no blanket bar on the judiciary to test the validity of a law placed in the Ninth Schedule, including the controversial Tamil Nadu Reservation Act raising the quota limit in the state to 69 per cent.
Solicitor-General G E Vahanvait, who was constantly grilled by a nine-judge Bench on various aspects of placing of controversial laws in the Ninth Schedule of the Constitution by Parliament, submitted that the Centre’s stand was not that there was a complete bar on judicial review, including the Tamil Nadu Reservation Act, provided certain conditions were fulfilled.
The admission came from the Solicitor-General after he was bombarded with questions by the judges in the Bench, headed by Mr Chief Justice Y K Sabharwal, seeking to know the clear stand of the Union Government on various aspects of the use of Article 31(B) to follow the Ninth Schedule route by it in respect of laws passed by states with an aim to preventing judiciary from examining them.
The Tamil Nadu Reservation Act, 1993, raising the quota limit to 69 from 50 per cent fixed by the apex court in Mandal Commission case, was the focus of the Bench to cite an example of the use of Article 31(B), to question Parliament’s power to follow the Ninth Schedule route to protect them from judicial test.
The Bench said if the Union Government stand was accepted it would “amount to a fraud on the Constitution”.
But Solicitor-General said, “The Acts placed in Ninth Schedule can be reviewed on touchstone of whether they destroy the essential feature of the Constitution”. But for that mere infringement of fundamental rights was not sufficient by the law in question as the correct test has to be whether it violated that part of fundamental right chapter, which formed the basic structure of the Constitution.
Besides, the Act in question has to be amended by a
two-third majority by Parliament, the cause for which it has been invalidated by the court has to be removed and the fact situation vis-à-vis its impact on society has to be taken into account, he argued.
But the court expressed surprise how the government stand was tenable in the face of use of Article 31(B) route to place a law in Ninth Schedule and asked whether the Tamil Nadu law did not violate the principle of equality in Article 16(1).
The stand of the Centre was quite in contrast of the Tamil Nadu Government, which has said that once a law placed in Ninth Schedule, it was not open to judicial scrutiny. State Chief Minister M Karunanidhi had even written letters to Chief Ministers of other states seeking their support to his government stand. He had justified hike of quota limit on the ground that total OBC, SC and ST population in the state was nearly 88 per cent.
The court asked whether bar on judicial scrutiny of the reservation law would not result in extending the quota limit to “90 per cent or 100 per cent”.
