Constitutional Dustbin

Rajeev Dhavan

TOI, 23 Jan

Has the Supreme Court missed the wood for the trees in its controversial judgment of January 2007 in the I R Coelho case on the Ninth Schedule? The Ninth Schedule was created by Jawaharlal Nehru's government as a vessel to protect agrarian reform legislation. Nehru's vessel became a constitutional dustbin for Indira Gandhi's and later governments to provide immunity for any kind of legislation relating to elections, mines and minerals, industrial regulation, requisition of property, monopolies, coal or copper nationalisation, general insurance, sick industries, acquiring the Alcock Ashdown company, Kerala Chitties Act, Tamil Nadu reservations of 69 per cent and so on. No principle underlies this selection. Theoretically, all state and Union legislations could be thrown into the dustbin. The dustbin was of limitless capacity. Once in the dustbin, the immunity was total. The statutes did not have to breathe the air of judicial redress or confront the discipline of fundamental rights. Unconstitutional actions could rot in the dustbin with impunity. Where did the Supreme Court go wrong? The first choice the Supreme Court had was to abolish the very mechanism of creating such a dustbin. This is what the court should have done. The very idea that a constitutional amendment can provide preferential protection to 284 specially selected statutes and many more to follow seems an anathema. Even if the Ninth Schedule dustbin was required in 1951 to protect agrarian reform, it is now a gigantic and monstrous power full of potential abuse. The original makers of the Constitution did not envisage such huge constitutional subversions. Sometimes the very 'width' of an enabling power is so frighteningly wide that its very existence and potential threatens the Constitution. It is this that animated anxieties in the famous Kesavananda case (1973), which created the basic structure doctrine. In the present Ninth Schedule decision, the nine judges could have accepted this 'width' doctrine and modified its earlier judgment on reservation (2005) to say that in certain cases the mere conferment of wide powers of huge amplitude disturb the scheme and structure of the Constitution — of which the Ninth Schedule mechanism was the worst example. The second alternative before the Supreme Court was to provide total immunity to the Ninth Schedule from judicial review and fundamental rights. This would have gone to the other extreme. Judicial review and essential fundamental rights are part of the basic structure of the Constitution. A nine-judge bench could not have overruled the 13 judges in the Kesavananda case, which protected the basic structure of the Constitution. Some politicians would have liked the Supreme Court to exercise such a choice. But, it is now too late and unwise to locate totally immunised legislation in the Constitution. The Supreme Court chose a third alternative, which looks like a middle course but is not. After the Coelho judgment, there are now two categories of statutes. The 'preferred' (Ninth Schedule) statutes which will have limited immunity and 'non-preferred statutes' which will be subject to the full rigour of constitutional rights and freedoms. Why was this distinction necessary? The answer that Parliament, exercising its amendment power, said so is not satisfactory. Such a distinction should not be permitted. The heavens won't fall if all statutes are given the same constitutional status even if evaluated differently. All statutes should uniformly be subjected to the fundamental rights provisions, which, in turn, balance the requirements of rights and the public interest. India's constitutional concept of reasonableness does precisely this. This is not to say that some statutes are not more important than others. But the concept of reasonableness would take all this into account. American courts deal with this by attaching strict scrutiny to some statutes and light scrutiny to others. But India's Ninth Schedule judgment gives preferred status to 284 statutes and many others which may follow. The new statute list could deal with anything — cats, mice, bricks or mortar. Once in the Schedule, they will have greater immunity. A greater immunity to these laws is provided by this latest judgment. Two tests have been delineated by the court. A legislation or action under protected laws must meet a dual test. Such laws cannot violate fundamental rights and must not violate the basic structure. This means some rights not related to the basic structure can be violated. Articles 14 (equality), 19 (fundamental freedoms) and 21 (life and due process) belong to the basic structure. But Article 15 relating to non-discrimination and the reservation amendments is also included. This adds political edge to the judgment. Why a dual test? Why are religious and cultural rights or untouchability or exploitation not part of the basic structure? Or are they? All this is left to chance. Such an open-ended approach does not just mean matters will be decided on a case-to-case basis. It means 'dustbin' immunities are preserved from some fundamental rights. The court also gave an edge to the public interest over fundamental rights. This reverses the basic assumption underlying the Constitution that it is the rights that are fundamental not the restrictions. The Supreme Court has provided a balance between rights and the public interest. But for Ninth Schedule statutes, it has maintained a constitutional bias. The Ninth Schedule dustbin could, and should have been buried. In that sense, the court threw away an opportunity. This is a 21st century judgment that views the Constitution with mid-20th century eyes. Parliament should abolish the Ninth Schedule.

The writer is a senior Supreme Court advocate.