Back to the drawing board

The Supreme Court judgment on the Ninth Schedule reflects the humongous reach and creativity of constitutional adjudication, which can logically achieve a result opposite to that intended by direct constitutional text. It establishes yet again that in the land of birth of the basic structure doctrine, it is futile to argue of judicial activism or co-equal organs. The judiciary will always have the last word since it alone can decide what is the basic structure. Since the basic structure can invalidate even a constitutional amendment, the latter will be reviewable by the judiciary.

The unanimous judgment of nine judges deserves analysis. One needs to appreciate not only how a large part of the order repeats the old wisdom of the Keshavananda judgment and that of its progeny, but also how it fashions a new doctrine of the unamendability of certain fundamental rights of the Constitution and renders the Ninth Schedule a superfluity.

The Ninth Schedule was inserted in 1951 to ensure that certain laws were not subjected to judicial scrutiny. Irrespective of its correctness or otherwise, the intent of Article 31B, enacted in 1951, is clear. It unequivocally directs that “none of the Acts and regulations specified in the Ninth Schedule or any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, regulation or provision is inconsistent with, or takes away or abridges, any of the rights conferred by any provisions of this part and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and regulations shall… continue in force.” The constitutional intent is crystal clear.

Keshavananda held in April 1973 that while the Constitution could be amended, its basic structure could not be altered. Twelve judges were equally divided on several core issues, while the thirteenth, Justice H.R. Khanna, agreed with the six who found the basic structure unamendable. His order has become the dispositive judgment for future generations.

The present apex court judgment analyses, with substantial logic, the earlier judgments and concludes that all constitutional amendments, including the process of adding to the Ninth Schedule, can be judicially scrutinised to see if they violate the basic structure. It gives examples of judicial review, rule of law, secularism, federalism, free and fair elections, democracy and so on as being intrinsically part of the basic structure.

It then notes that Justice Khanna did not hold that all fundamental rights in Part III of the Constitution are outside the basic structure. Justice Khanna — as he himself observed in his later judgment in the Indira Gandhi case — only demonstrated that the right to property is outside the basic structure, but did not say so for the other fundamental rights. Justice Sabharwal then concludes that several fundamental rights must necessarily be treated as part of the basic structure. He catalogues these rights as Article 14 (equality generally), 15 (prohibition of discrimination on grounds of religion, caste, race, etc.), 16 (1), (4) and (5) (equality qua public employment), 19 (the six rights of free speech, occupation/profession, assembly, association, movement and residence), 20 (no criminal conviction/penalty retroactively) and 21 (right to life and liberty).

Finally, the SC concludes that any law put in the Ninth Schedule must be liable to full scrutiny not only on the ground of the basic structure but also on the ground of violation of any of the aforesaid fundamental rights and if found — by applying the test of effect and consequence of such law on fundamental rights — to have violated them, would be declared invalid. If not, it would continue to repose in the Ninth Schedule.

At one level and as a lawyer, I find it difficult to fault the judgment. After all, the basic structure doctrine has been with us for over three decades and frequently applied. Similarly, it is difficult to argue that the fundamental rights enumerated above do not form part of the basic structure. Take away any of them or dilute them and it would be difficult to conceive of a free and vibrant democracy.

At another level, I have some difficulties with the judgment. First, it achieves a result, for the first time, which is directly contrary to the intention of the framers of Article 31B. There is hardly a law that cannot be challenged on the ground of alleged infringement of the aforesaid articles. The moment such a challenge is mounted on a law put consciously by Parliament in the Ninth Schedule, it has now to be judicially reviewed fully. The point is not that it may ultimately be upheld. The point is that if upheld, it does not in any case require the immunity of the Ninth Schedule. If invalidated, it will anyway be struck down irrespective of the Ninth Schedule. This proves that the Ninth Schedule, and Article 31B, is irrelevant anyway.

Second, is this result not directly contrary to what the framers intended and Article 31B specifically mandates? Third, are we harking back to the era of Golaknath, a late-Sixties apex court judgment, which in a sense was Keshavananda’s precursor, since it held the entire Part III Fundamental Rights Chapter to be unamendable? Keshavananda overruled Golaknath, but the fairly wide catalogue of fundamental rights listed in the present apex court judgment almost brings us back to the Golaknath doctrine. The more things change, the more they remain the same.

Abhishek Singhvi is MP, Congress National Spokesperson and Senior Advocate
Email: abhisheks777@rediffmail.com