Ninth Schedule subject to judicial scrutiny – but what’s new?

By Vijay Kumar

It is proper that we are ultimately right rather than be consistently wrong.

What’s the difference between 1980 and 2006? Don’t tell me 26 years! Then there were no TVs, no live channels, no spot reports, but Article 31 B was very much there and Schedule 9 was very much there and the issue of immunity to the statutes mentioned in the ninth schedule was also there. Then what is the hype all about now? What is the new law laid down by the Supreme Court of India?

The ninth schedule was included in the constitution by the very First Amendment along with Article 31 B. Till yesterday it stood as a proviso to the supremacy of fundamental rights, as the only purpose of the schedule is to save some Acts and regulations from judicial scrutiny.

Article 31B gives blanket protection to all items in the Ninth Schedule with retrospective effect. Prime Minister Nehru at that time assured that “there was no desire to add to the list of 13 items being incorporated in the schedule.” Today the schedule consists of at least 284 Acts. There are 284 statutes which are out of bounds for the Supreme Court of India. It is rather a very sad feature that the Indian legislature wants to keep nearly 300 laws beyond the power of the Indian judiciary.

While the KeshavanandaBharti case advocated the Basic Feature doctrine and limited of the powers of the legislature, the Waman Rao case upheld the basic structure doctrine and held that though the Ninth Schedule and Article 31B by themselves were not violative of the basic structure of the constitution, any amendments or additions to the schedule after the KeshavanandaBharti judgment was not immune from the scope of judicial review. The Court observed,

“in so far as the validity of Article 31B read with the Ninth schedule is concerned, we hold that all Acts and Regulations included in the Ninth Schedule prior to April 24, 1973 will receive the full protection of Article 31B. Those laws and regulations will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution. Acts and Regulations, which are or will be included in the Ninth Schedule on or after April 24, 1973 will not receive the protection of Article 31B for the plain reason that in the face of the judgment in KesavanandaBharati (supra) there was no justification for making additions to the Ninth schedule with a view to conferring a blanket protection on the laws included therein. The various constitutional amendments, by which additions were made to the Ninth Schedule on or after April 24, 1973, will be valid only if they do not damage or destroy the basic structure of the Constitution.”

And this is exactly what the nine judges of the Supreme Court of India pronounced yesterday. What’s new?

But Acts continued to be added with impunity and immunity.

Incidentally the Waman judgement had Justice Krishna Iyer in the bench and whenever you read a judgement of Justice Iyer, you will be floored with a few quotes. Here are some:-

++ Don't be consistent, but be simply true.

++ A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.

++ With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall.

++ Speak what you think now in hard words and tomorrow speak what tomorrow thinks in hard words again, though it contradict every thing you said today.-"Ah, so you shall be sure to be misunderstood." Is it so bad then to be misunderstood? pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh. To be great is to be misunderstood.

++ in constitutional issues over-stress on precedents is inept because we cannot be governed by voices from the grave.

++ it is proper that we are ultimately right rather than be consistently wrong.

++ Even so, great respect and binding value are the normal claim of rulings until reversed by larger benches. That is the minimum price we pay for adoption of the jurisprudence of binding precedents. I leave it at that because the learned Chief Justice has held the impugned Act good in its own right. Enough unto the day is the evil.

Incidentally, the following Acts figure in the list of 284 Acts in the Ninth Schedule.

1. The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (Central Act 13 of 1976).

2. The Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1976 (Central Act 20 of 1976

3. The Foreign Exchange Regulation Act, 1973 (Central Act 46 of 1973).