Legislature Vs Judiciary- in the 9th Schedule Perspective

A talk at IIPA meeting on March 27 Tuesday, 2007; by
Prof. Joseph K. Alexander
Chairman, Kerala IIPA Regional Branch.

Supremacy of Legislature.
What is the 9th Schedule? How it came into being? The Parliament passed the first amendment to the Indian Written Constitution in 1951 as Article 31B. Those were the days of land Reforms Acts. It was feared that some judges might pass an order that taking over of surplus lands or other parts of such legislations as violative of the fundamental Rights to property provided in Article 31.To prevent such eventualities, legislatures can request such of their acts that want protection to be included in the 9th schedule. The Legislatures by creating the 9th schedule were thus declaring their supreme power to pass laws. It was a warning to the Judiciary that they shall not overstep their limits and declare such laws in the 9th schedule as ultra vires because legislature represents the people and their will

Judiciary’s warning.
Judiciary swings the seesaw in their favour. In 1967 in the Golaknath case, Supreme Court by a razor- thin majority of 6:5 in an 11 member Full Bench Court declared that Parliament cannot pass any law that violate Fundamental rights stipulated in the constitution. This was an attempt to cut a few feathers of the Legislature to prevent super flights into absolute sovereignty in legislations.

Judiciary bends.
In 1973 in the Kesavanda Bharathy case Supreme Court by another razor-thin majority 7:6 in a 13 strong Full bench ruling said that Legislature could pass Laws that even amend Fundamental Rights, provided that such laws do not damage the basic Structure of the Constitution.

3 Issues arise.
1. What are Fundamental Rights?
2. What amounts to Violation of Fundamental rights?
3. What are the Basic features of the constitution that may get damaged?

The Fundamental Rights are stipulated in the Articles 14 to 35 of the Constitution. Article 14 to 18 prescribes the right to equality, 19 to 30 about secularism and freedom, 31 right o property and 32 to 35 about the right to constitutional remedies.

The separation of powers between Legislature, Judiciary and Executive; the clear-cut stipulation of subjects of Union, State and Concurrent list on which Union and States may pass laws; and the checks and balances that are provided in the constitution, compel all the participants of the Union to do a lot of tight-rope walking and balancing to remain within their realm and without over-stepping into the areas of others. Any act that violates any of these will be violating the Fundamental Rights.
Now let us see what are the damages that can happen to the basic character of the constitution. Any legislations or actions of anybody that violates the separation of powers between the legislature, Judiciary and the Executive, or abrogates any of the 3 lists --State, Union or concurrent -may change or damage the basic structure of the constitution. Supreme Court is the watchdog of all these possible violations.

I submit that this is the merit and the success of our written Constitution. Many of the States that got independence and self-government after the World War, sooner or later degenerated into other forms of Government. We have a number of examples around us. India was able to sustain a Pluralistic Democracy, all these years mainly because of our written Constitution and the watchdog, the Judiciary. The basic strength of the Indian Republic is this clear-cut separation of powers and areas of operation of the various parts of the state.

While our Constitution is very specific regarding the functions of the various parts of the Union and States, it is vague enough on the boarder areas of separation of powers to provide flexibility or malleability in law making, in the judicial review and execution of them. The units of the Union and the States are very vigilant about encroachment by other parts into these grey areas on the boarder lines. The present issue between the legislature and the judiciary is typical.

I would consider this as the most effective part of our written Constitution that enable us to sustain a Plural Democracy in such a vast nation of 103 crores of people of different cultures, customs, languages and religions. The credit is entirely with the framers of our Constitution.

Judiciary Claims Superiority.
On 11th January 2007 a 9 member Full bench of the Supreme Court unanimously ruled in the I.R.Coelho Vs. the State of Tamil Nadu case; that laws included in the 9th Schedule do not have protection of Article 31 B. Anybody can challenge any of them. Supreme Court’s interpretation will stand. Thus Judiciary is trying to claim superiority by asserting its watchdog function.

This latest judgment defeats the fundamental division of powers between the Legislature and Judiciary. It damages the basic feature of our constitution. It has disturbed a hornet nest. The Decree has opened a Pandora’s box. Any existing or new law that claim protection of Article 31 B and included in the 9th schedule can be challenged by any and Supreme Court Review will be final.

Comments.
284 Acts have been included in the 9th Schedule. Of them 66 were included before the Kesavananda Bharathi case in 1973. They were mostly Agrarian Land Reforms. Those Acts passed after the Kesavananda Bharathy case ruling in 1973 violate fundamental rights; but without damaging the Structure of the Constitution. So they got into the 9th schedule. Now Supreme Court asserts that it has the power to review all of them and declare them as valid or invalid.
This assumption of superiority is too much. Legislature alone has the power to pass laws. The people elect them. Legislature is “vox populi”. They alone represent the people. Hence their sole right to pass laws is unquestionable.

It is true that now-adays many laws are passed by the legislatures in a single sitting like cooking Iddalies in a pot. Many of these laws are ill conceived, ill-framed and with the least homework. Some of these laws are presented in the parliament and passed with a brute majority and against opposition from the non-treasury benches, only to hoodwink the masses that voted them up. They want to parade before the voters that the election manifesto items are being implemented. They want to show them that the party wants such legislation; but the opposition is against it; or the courts are declaring them unconstitutional. This is really abuse of legislative power. Typical example is the Kerala “Self Management Professional Educational Act 2006”. All the courts that heard it declared it and its parts as violating the constitution.

Despite this type of immaturity and partisanship of modern parliamentarians, may I submit that Supreme Court cannot declare itself to be superior to the Legislature. Legislature alone has the power to pass the Laws. No Judiciary or Judicial review can amend it, or add or delete it. At best it can only interpret legislations. While thus admitting the superiority of the legislature to pass laws, the merit of our constitution is the limitations to the power of each of the parts of the State tacitly provided in the constitution. They should not overstep those limitations.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>