VERDICT ON NINTH SCHEDULE

Paramountcy of judicial review established

Fali S. Nariman

Strange and varied are the influences on constitutional decision-making. If Mrs. Indira Gandhi had not lost the election petition filed against her in the Allahabad High Court in June, 1975……, and if Justice Khanna was not a member of the Constitution Bench (of five Judges) that decided her election appeal in the Supreme Court; (where he explained what he meant to say in his earlier judgment in Keshavananda Bharati) then , none of the Fundamental Rights would have been regarded as part of the Constitution's "basic or essential features", with the result that Parliamentary or state enactments placed in the Ninth Schedule (by Constitutional Amendments) after April 1973 would have been immunized from scrutiny by courts.

Let me explain.

Under the Constitution of India 1950, courts are empowered to invalidate legislative enactments and executive orders which violate any one or more of the Fundamental Rights guaranteed in Part III of the Constitution (Part III is our Bill of Rights). But the Constitution is silent on the question as to whether courts are empowered to adjudicate on the validity of constitutional amendments. With one single political party almost consistently returned to power with a two-thirds majority at each general election since 1951, the judges of the past had plumbed the depths of silence in one of the world's longest Constitutions, searching for some limitation on the amending power.

They attempted to find it - unsuccessfully, as it later turned out in Golaknath (1967) where a Bench of 11 Justices held by a narrow majority (6:5) that constitutional amendments were "laws" under Article 13 and as such subject to the mandate of that article viz. that Parliament or State Legislatures could not abridge or take away fundamental rights by enacting laws whether in exercise of legislative powers or in exercise of constituent powers.

The next attempt nearly successful but not quite was in Keshavananda Bharati (April 1973) wherein a full Bench of 13 Justices, a narrow majority of the court (7:6) held overruling Golaknath that though all the provisions of the Constitution, including fundamental rights, were amendable, certain "basic and essential features" of the Constitution (left undefined but which included features like secularism, rule of law, independence of the judiciary) could never be amended or abrogated : whether any of the Fundamental Rights could be characterized as part of the basic and essential features of the Constitution was left undecided, one of the Justices comprising the majority (Justice H. R. Khanna) holding that the right to property could in no event be a basic essential feature.

The first application of the conclusion (lawyers call it "the ratio") of the decision in Keshavananda Bharati came in the case of Raj Narain vs. Indira Gandhi (1975) where a Bench of five Justices sat to determine the validity of the Constitution Thirty-ninth Amendment Act, 1975 which attempted to validate the election of Mrs. Gandhi to the Lok Sabha (the Allahabad High Court having invalidated and set aside her election). The Judges in that five-Judge Bench were those who had sat, deliberated and decided Keshavananda Bharati: and four out of these five Justices had been in the minority in Keshavananda Bharati, having there decided that there were no restrictions whatever on Parliament in exercise of its constituent powers to take away or abridge any part of the Constitution, including Fundamental Rights; yet accepting the discipline of the binding majority judgment in Keshavananda Bharati, all of them struck down (in Raj Narain vs. Indira Gandhi) some of the provisions of the Constitution Thirty-ninth Amendment Act as violating "the basic structure" of the Constitution.

It so happened that Justice H. R. Khanna was also a member of that Bench; which gave that Judge the opportunity to say that his judgment in Keshavananda Bharati had been misinterpreted to mean that in his view none of the fundamental rights was part of the basic or essential features of the Constitution. Khanna said that: he only meant to say that the right to property (Article 19(1) (f) and Article 31) was never part of the basic or essential feature of the Constitution. It was this clarification that paved the way for later decisions of the Supreme Court Bench decisions of five Justices in Waman Rao (1980) and Minerva Mills (1980) which still left undecided the question as to whether any particular Fundamental Right, was a basic or essential feature of the Constitution which could be taken away even in respect of Parliamentary or State enactments placed in the Ninth Schedule after April, 1973: it was this great question that occasioned the reference (in 1999) to a larger Bench of Nine Justices which ultimately heard the reference (in October 2006) and handed down its decision on January 11, 2007.

As to what the Judges have decided in the unanimous judgment of the Nine Judge Bench will be debated by lawyers (and politicians) over the months and years. To me the judgment establishes the pre-eminence of judicial review of each and every part of our Constitution.

Since Parliament is presumed to legislate in conformity with Fundamental Rights (says the Nine Judge Bench), the basic- structure-doctrine requires the State to justify the degree of invasion of Fundamental Rights in every given case: and this is where the court's power of judicial review comes in. The greater the invasion into essential freedoms (mentioned for the first time in the judgment as being contained in Articles 14, 19 and 21) the greater the need for justification and determination by the Supreme Court whether such invasion was or is necessary, and if so to what extent. The degree of invasion is always for the highest court to determine not for any other body or institution. The power to grant immunity to Acts placed in the Ninth Schedule on some fictional basis (as provided in Article 31 B) without a full judicial review "will nullify the entire basic structure doctrine. "Thus spoke the court.

The paramountcy of judicial review was enunciated in colourful terms (though in a somewhat different context) by a great English commercial Judge. In the nineteen-thirties, Lord Justice Scrutton famously said that "there must be no Alsatia in England where the King's writ does not run". ("Alsatia" was then a debatable piece of territory between France and Germany). The clear message handed down in the Judgment of the Nine Judge Bench in the Ninth Schedule case is that there must be no Alsatia in India where the writ of the Supreme Court does not run.

(Courtesy : The Tribune dated 20th January, 2007)