The Supreme Court has done the country a service by arresting the mischief that has been sought to be done by politicians, who (it would appear) would like to take all contentious legislation beyond judicial purview by placing it in the Ninth Schedule of the Constitution. If there is no check on the legislature in the context of this Schedule, in theory all legislation can be brought within its purview. That would take Parliament and its law-making function beyond the reach of the courts and would clearly upset the basic scheme of the Constitution. Although the specific provocation for the issue being addressed now might have been the law on reservations, there was also talk in recent weeks of placing Delhi's land laws in the Ninth Schedule so that the courts would not be able to strike them down. It is clear therefore that the judiciary's role in the Constitutional scheme of things was under attack, and it is entirely to be expected and welcomed that the Supreme Court has responded by bringing the legislature back on track. | |
| The history of the Ninth Schedule goes back to land reform legislation more than half a century ago. Land reform was by its nature socialist, expropriatory and egalitarian at a time when the courts and judges were mostly conservative in their orientation. Frustrated by the courts stopping him in his socialist tracks, Jawaharlal Nehru thought up the Ninth Schedule as a device for getting around the courts. It worked at the time, though the Supreme Court did draw the marker two decades later when it declared that no government could tamper with the basic structure of the Constitution. In a sense, the latest judgment says the same thing. You cannot hope to escape judicial review by placing any old piece of legislation in the Ninth Schedule; there are limits and the Court must decide what these are. If the Court puts a maximum limit on the percentage of seats or jobs that can be reserved for specified categories of people, then Parliament cannot evade that judgment by using the Ninth Schedule. |
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| The question now is whether this development will bring about a head-on confrontation between two of the most important institutions of India's democratic system. The prospect cannot be ruled out of Parliament and the Speaker taking an absolutist position with regard to their powers, especially since the legislation at stake is one with wide political ramifications. It must be hoped, however, that wise counsel and sage leadership will prevent the system being put to the test in a direct confrontation. |
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| Meanwhile, politicians on their part have been feeling (and indeed saying) that the courts have been over-stepping the line and straying on to executive turf. This is self-evidently true, given the nature of some of the orders passed by different courts in recent years. If the courts have got away with it, it is because in most cases they were pulling up a recalcitrant executive that was not doing its job, as a result of which the courts had the backing of public opinion. Nevertheless, it would be just as well if the judges, while interpreting the Constitution correctly, confined themselves in other areas too to matters of law and its correct understanding, and did not stray on to executive turf. That would help all three arms of the state to stick to what they are permitted to do in the Constitutional scheme. |
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