Basic argument

Defining the lines and limits of legislative functioning has been the central focus of two significant Supreme Court judgments delivered on two consecutive days. While Wednesday8217;s verdict recognised Parliament8217;s right to conduct its own affairs, it had also emphasised that this functioning cannot be held immune from judicial scrutiny in terms of whether or not it conforms to constitutional propriety. Thursday8217;s verdict on the Constitution8217;s Ninth Schedule takes the theme of judicial review further. By stating that all laws in the Ninth Schedule, promulgated after the Supreme Court had propounded the doctrine of the basic structure of the Constitution in the Keshavananda Bharti case in 1973, would now be open to the scrutiny of the apex court.

The Ninth Schedule came into force in 1951 along with Article 31 B, when the Nehru government 8212; largely to hasten the pace of land reform 8212; put in place a constitutional mechanism that deprived the judiciary of its power to challenge the validity of acts passed by the legislature. The problem, of course, was that instead of being deployed in the rarest of the rare case, the political class 8212; especially after the Keshavananda Bharti case 8212; succumbed to the temptation of placing all sorts of dodgy legislation which it felt could invite court objections under the Ninth Schedule. Consider the record. Until 1973, just a handful of laws came under the Ninth Schedule. Today they number over 280. It is this careless, even reckless, use of the Ninth Schedule that seems to have raised the hackles of the apex court, which recently reviewed the Ninth Schedule at some length while called upon to decide on a raft of petitions, including one questioning the validity of the Tamil Nadu Reservation Act. This law, which came into force 12 years ago, and which provides for 69 per cent reservations in the state, violates the 50 per cent Supreme Court ordained limit to reservations.

The latest verdict is bound to create waves in the political universe. For one, the ruling has a direct impact on how the reservations are envisaged 8212; a contentious and emotionally charged issue certainly. But political responses must be tempered by the realisation that every law sought to be enacted by Parliament or the state legislature would need to conform to the letter and spirit of the Constitution.