The Hindu Business Line : The Ninth Schedule controversy

To a layman, the arguments being tossed back and forth in the Supreme Court on the Constitutional acceptability of Parliament's action of putting legislation of its choice into the Ninth Schedule (which would prevent courts from passing judgement on them) are far too complex; they involve issues such as Constitutional propriety, the spirit of the Constitution — subjects that are seemingly far removed from the humdrum of day-to-day life , but which, if explored closely, are as important as protecting one's right to vote, so to speak.

Foundations of freedom

The three pillars of the Indian State — buttressed by the fourth, namely, the media — form the foundation of the freedoms that the citizen has enjoyed since we became a Republic in 1950. The three pillars — the judiciary, the legislature and the executive, the functioning of each governed by the Constitution — enjoy independent positions, but contribute to a way of life for the average citizen that was envisioned by our founding fathers.

Common sense would suggest that this structure of the State, based on the free and fair interplay of the three entities, should be preserved untouched on the ground they ensure "liberty, equality and fraternity" — the bedrock of the Constitution. And so, every effort to disrupt this balance should be shot down as being against the spirit of the Constitution, if not against its letter.

The delicate balance

The controversy surrounding the Ninth Schedule should be seen in this perspective, specifically whether the Schedule (which, incidentally, was the product of the first amendment to the Constitution in 1951, that is, at a time when the founding fathers were on the scene) is today disrupting the fine balance among the three wings of the State. It is clear that, given the functions of the Ninth Schedule, it can easily be used as an instrument with which to upset the delicate balance among the three wings of the State. The question is: Is it being used is such a manner, leading to the creeping dominance of one of the arms of the State to the exclusion of the others in the overall governance of the Republic?

Eminent lawyer, Mr Fali Nariman, has argued that: "Enough damage has already been done to the Constitutional scheme of things by putting all and sundry into the Ninth Schedule and the court must interpret the provisions to stop further damage to the Constitution."

Senior advocate, Mr Harish Salve, has said, "Article 31B is not a laundry bag into which all laws, which have a spot on them, be tucked in endlessly." He has further argued that in the light of the 1973 ruling of the Supreme Court — namely, that Parliament does not have the power to amend the Constitution in such a manner that it is tantamount to tinkering with its "basic structure" — there is no room for laws, which per se violate the Fundamental Rights, to take the Ninth Schedule route.

Until now, more than 280 pieces of legislation have been included in the Ninth Schedule, the vast majority of them pertaining to land acquisition and land reform requirements of the various States of the Union, which in fact was the original intention of the Constitution. Should this trend be altered now — and more for transient political reasons than anything else?

Ranabir Ray Choudhury

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