Media hail SC verdict
The historic judgment and its media endorsement impart to the verdict the status of a national consensus.
Dasu Krishnamoorty
The Indian media have returned an unequivocal verdict of applause on the Supreme Court¿s unanimous disapproval of the government using the Ninth Schedule as a `laundry bag` to dump all tainted laws, thus skirting judicial review of constitutionally questionable legislation. As a wing of global commerce, media certainly have a stake in preserving economic status quo but in the present case they cannot be faulted because the Ninth Schedule is a case of the state embracing the softest of options, though in the cause of redistributive justice. The bench of nine judges delivered a damning censure of the state of Indian polity, a veto endorsed by every newspaper not subsidized by any political party. The scandalous growth of laws enjoying the Ninth Schedule umbrella from 13 in 1951 to 284 today exposes the face of political misdemeanor and vindicates the January 11 ruling.
Though the Hindu concedes that it is difficult to fault the court¿s reasoning, it strangely describes it as ?a natural institutional reaction to the ouster of jurisdiction in the early years of the republic.? This reading clearly amounts to hermeneutical failure. As Pratap Bhanu Mehta writes in the Indian Express, ?The importance of this judgment will be diminished if we see it only as an attempt by the Supreme Court to assert its supremacy.? The courts are a corrective mechanism constitutionally sanctioned to regulate legislative exuberance. Witness the violence the Tamil Nadu Reservations Act , rightly described by the Tribune as a classic example of misuse of legislative privilege, does not only to natural justice but also to the basic structure of the Constitution.
What an irony that the first amendment to the statute should mess around with fundamental rights it so proudly guarantees! The amendment had won two-thirds vote because the Congress enjoyed brute majority at that time. The Times of India has appropriately cautioned that ?Parliament has the right to amend the Constitution but not subvert its fundamental principles. The nine judges have done nothing but ?give flesh and blood to the fundamental philosophy enunciated by the court 34 years ago in the Keshavanand Bharathi case in which it held that Parliament cannot change the basic structure of the Constitution,? in the words of a Deccan Chronicle editorial.
Some experts ask what is basic about the basic structure principle. Mehta says that the present ruling is an answer to that question. According to him, what the court had asserted is not its authority but a reiteration of the status of citizens as free and equal persons. In the now famous ruling, on April 24, 1973, a special bench comprising 13 judges of the Supreme Court ruled by a majority of 7-6, that Article 368 of the Constitution ?does not enable Parliament to alter the basic structure or framework of the Constitution.?. Moreover, it reiterated a decision of a special bench of 11 Judges, by a majority of 6-5, on February 27, 1967, that ?Parliament has no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights.?
Eminent lawyer Indira Jaising has a point. She says, ?When the Supreme Court says that judges will decide if reservations in education violate the basic structure of the Constitution or not I have an objection. Because, like reservations, there are many issues which are actually the result of healthy politics of the country and are solid political decisions. Political ideas should be debated and defeated only in Parliament. You can`t go to ?un-elected? people (judges) to strike down the political decisions in a democracy.? Admitted. What recourse have people if Parliament decides that the country can do without courts? Do they appeal to Parliament against its own decisions? People need both Parliament and the judiciary.
According to the Hindu¿s legal correspondent J.Venkatesan, ?the court has clearly said that the power of judicial review cannot be taken away by putting a law under the Ninth Schedule. The bench had said the consequence of the insertion is that it nullifies the entire Part III relating to fundamental rights.? The implication of the Ninth Schedule simply put is: every time the government wants to pass a dubious law it does not need to amend the Constitution but put it in the Ninth Schedule.
Well-known jurist Rajeev Dhawan points out that ?it is very important to note that the Supreme Court has added Article 15 in their judgment.? Article 15 prohibits `discrimination on grounds of religion, race, caste, sex or place of birth`; Article 19 deals with the `protection of certain rights regarding freedom of speech etc`; Article 20 gives citizens protection in respect of conviction for offenses and Article 21 gives protection of life and personal liberty, now protected by the January 11 judgment like never before.
The Telegraph fears that the judgment will open a can of worms even as the Business Standard: wonders ?whether this development will bring about a head-on confrontation between two of the most important institutions of
Vote-thirsty political parties are already alarmed and baring their fangs. Lok Janshakti Party, a member of the Congress-led coalition, wants a review of the order by a 13-judge bench of the apex court and also a constitutional amendment to ensure that reservations laws are protected from the mischief of judicial review. In a muted comment, the CPI sought that laws such as the Tamil Nadu Reservation Act should be kept outside the ambit of ?judicial review. Dravidian parties of all alphabetical hues have rapped the judgment. The Congress has preferred to wait and watch. So far only the BJP, the main Opposition party, has ?welcomed? the order and will certainly add it to its electoral arsenal.
The Times of India reports that the government may not seek a review of the court order but wait for a three-judge bench the Supreme Court will appoint to hear all 30 petitions related to the Ninth schedule. But the reservation lobby, perpetually in quest of crutches, argues that the idea of the Ninth Schedule was to negate certain fundamental rights so that certain larger good is served without attracting judicial scrutiny. Because the entire judgment has a reservations context, it is appropriate to describe reservation as the jungle law of eye for eye because your ancestors had cheated our ancestors.
The historic judgment and its media endorsement impart to the verdict the status of a national consensus. It must be remembered that the victims of Ninth Schedule are as much a part of the wider society as its beneficiaries are and therefore need equal protection.
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