T. R. Andhiyarujina *

The vital question which the Supreme Court decided in its judgment of January 11,2007 was whether Parliament may include any Act made by it or the State Legislatures in the Ninth Schedule to the Constitution and thereby give it total immunity from the challenge of fundamental rights.

To appreciate this problem it is necessary to understand that the Constitution was amended in 1951 to introduce Article 31B which gave Parliament the authority to put in any Act in the Ninth Schedule and make it immune from judicial scrutiny.

In the landmark judgment of the Supreme Court in Keshavananda Bharati’s case delivered on April 24, 1973, the Supreme Court held that Parliament had the power to amend the Constitution but the amendment could not alter “the basic structure” of the Constitution. When this decision was given Parliament had already put in 66 Acts in the Ninth Schedule. Between 1973 and 1995 Parliament put in a further 218 Acts in the Ninth Schedule to give them immunity. The free use of this device to immunize laws from judicial scrutiny led to the latest case in the Supreme Court

The court did not accept government’s contention that Kesavananda’s case had legitimatised Article 31B and the inclusion of any Act in the Ninth Schedule but the Court said that it was assuming that Article 31B was valid even today. However, the Court held that only those Acts which were inserted in the Ninth Schedule after April 24,1973 would receive immunity provided they did not alter the basic structure of the Constitution by abrogating a fundamental right. The Court held that each of the Acts included in the Ninth Schedule after April 24,1973 could be examined whether they only abridged a fundamental right in which case the Act could receive immunity or it went further and abrogated a fundamental right in which case, it would not receive immunity.

The Court gave examples of the latter type of situation in cases where an Act put in the Ninth Schedule sought to destroy freedom of speech of the press or the secular character of the nation. On the other hand fundamental freedoms could be abridged by an Act to combat terrorism and such an Act could receive immunity by inclusion in the Ninth Schedule. In each case, the Court would examine the impact of the included Act on fundamental rights particularly the fundamental rights in Articles 14,15,19 and 21 and whether exclusion of judicial review which was a basic feature of the Constitution was justified.

The latest judgment of the Court does not really break new ground as this was already decided by the Court in 1980 in Waman Rao’s case. Therefore, the latest judgment should not affect Parliament’s power to amend the Ninth Schedule materially.

However, the latest judgment emphasises forcefully the value of fundamental rights and the Court’s readiness to protect them and in that sense will be a deterrent to an indiscriminate use of a legitimate constitutional device by Parliament.

TOI