'SC judgment exposes the legislature'

Senior Supreme Court lawyer Indira Jaising says the judgment will make the Supreme Court and other Indian courts one of the most powerful courts in the world.

Rajiv Dhawan, brilliant interpreter of the Indian Constitution, thinks the apex court has tried to do some "very delicate balancing" between the rights and restrictions awarded in the Constitution, while well-known activist and liberal lawyer Prashant Bhushan wants a national debate on why the basic structure of Constitution itself cannot be touched.

The judgment reaffirms the judiciary's faith in maintaining 'the basic structure' of the Indian Constitution.

Dhawan told rediff.com that this judgment is a compromise between the liberals who want to use political power to enlarge the Ninth Schedule and the conservatives who want to use this power carefully.

While highlighting the most important part of the judgment, Dhawan said, "Normally, Constitutional interpretation proceeds on the assumption of the primacy of Fundamental Rights. By giving primacy to the public good over Fundamental Rights that presumption is slightly reversed. This is inimical to civil liberty."

But there are many Acts which do not need the protection of the Ninth Schedule like the now defunct Maintenance of Internal Security Act and the 69 per cent reservation in Tamil Nadu, he said.

He said the purview of the Ninth Schedule was excessively enlarged and this judgment "exposes the legislature."

The January 11 judgment states that although the government is entitled to place laws in the Ninth Schedule, if it violates the Fundamental Rights guaranteed under Articles 14, 15, 19, 20 and 21 of the Constitution they are liable to be struck down by the courts.

The judgment also said if any law kept in the Ninth Schedule is found 'not in accordance with the basic structure of the Constitution' it can be challenged and struck down.

The judgment wants laws under the Ninth Schedule to pass a dual test. One, it should not violate Fundamental Rights under Articles 14,15,19,20 and 21 and it should not violate the basic structure of the Constitution.

Dhawan said it is very important to note that the Supreme Court has added Article 15 in their judgment.

Many legal experts said any quota given while considering religion would become almost impossible now.

Quotas awarded by state governments and kept under the Ninth Schedule to protect it from being challenged in the Supreme Court will come under deeper scrutiny, sooner rather than later, say experts.

Any education quota above 50 per cent (the ceiling fixed by the Supreme Court) will now become challengeable.

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.

Ravishanker Prasad, lawyer, former Union minister and Bharatiya Janta Party leader, told rediff.com, "I welcome the judgment because basically it reaffirms the power of judicial review given to the Supreme Court under the Constitution. The judgment has sobering restrictions against competitive politics."

He said just because some political party gets a majority it cannot be allowed to turn Indian democracy into a monarchy, so the idea of upholding the "basic structure of the Constitution" is to be welcomed.

Prasad does not want the idea of basic structure itself to be challenged as recommended by Prashant Bhushan because, he argues, the idea of the "basic structure" is well ingrained in the minds of Indians. The BJP leader said, "Don't see the judgment from the premise of reservations, it should not be the touchstone of the reservation issue."

However, the issue of quotas in educational institutions will become the issue of hot debate because as Sibal points out the inclusion of Article 15 in the judgment is a very important issue.

Sibal told rediff.com, "Today's nine-judge ruling is revolutionary because it says that any legislation that violates the Fundamental Rights guaranteed under Articles 14, part of 15, 19, 20 and 21 of the Constitution are liable to be struck down by the courts."

Bhushan "welcomed the judgment. It says that no Constitutional amendments can violate the basic structure of the Constitution. But I question the concept of "basic structure" as envisaged today and believe that we should debate the basic structure of the Constitution itself."

Jaising, who wants a "new Constituent Assembly" to debate the Constitution, 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. This judgment is against the idea of political freedom. How can judges decide the merit of the people of India's collective political will?"

Asked if the judgment will create tension between the legislature and the judiciary, Bhushan said, "It will create tension, but it can't be helped."

Senior lawyer Anil Divan felt, "This judgment is reaffirmation of the previous judgments on similar lines which say that laws under the Ninth Schedule cannot violate the basic structure of the Constitution. There is nothing to panic."