Ninth Schedule and Untouchables

I have always been ambivalent about the 9th schedule in our constitution. But I have to confess that I am a big fan of the approach the constituent assembly took in coming with schedules to enumerate states, languages of the union. However the concept of immunity from judicial review is a totally different issue. This is a classic and typical problem that arises in any constitutional democracy with the tripolar structure : executive, legislative and judicial branches. How would we let a group of unelected judges dictate and overrule popular will ? But if we let the "popular" will to be supreme at all circumstances, the premise that the popular will would automatically confine its function within the four walls of the constitution becomes very suspect. But the answer as in many other cases lies in the middle. If all the branches agree on the primacy of the constitution over and above all their unitary powers (combined) and the judges decide the (un)constitutionality of any law that comes under review, rigorously based on the constituitional tenets we can hope to have a stable equilibrium. This issue is very complex that occupies countless volumes of legal scholarship, I won't even attempt to argue it, but my preference is for untrammeled judicial review combined with the
power to the legislative/executive branches to appoint judges.

It is noteworthy to remember that in the most evolved of all constituitional democracies the United States, no law is exempt from judicial review. Marbury v. Madison (1803) anchored this principle very early on. This is not to say that this untrammeled judicial review was (is) always popular. For example during FDR's presidency several of his New Deal programs were struck down by the conservative court. This did not prompt FDR to amend the constituition to create a phony nineth schedule to include New Deal laws under its cover. He packed the court with men he thought would be sympathetic to his social and economic policies. Again in the current cultural battle of abortion and Roe v. Wade, nobody in US is suggesting that a constitutitonal amendment to create an "untouchable" schedule be passed and the laws banning abortion be included in it. Both sides on this issue are seeking to get their view prevail in the court by appointing judges who would rule in their favour. We do hear some voices arguing for a constituitional amendment banning abortion which is an entirely different approach.

On a similar issue in India, relating to agrarian reform and estate possessions reform instead of relying on the power of the popular will to be able to appoint and keep judges sympathetic to that social view, which was an extremely easy task at that stage of the republic, with Nehru at the helm, we created this mish-mash articles 31-A and 31-B providing "immunity" to these laws from judges. Now once the genie of judicial immunity was out of the bottle, it took no time for our geniuses to create a menstruating ladies room out of the 9th schedule to protect their favourite laws. I have been following the arguments with keen interest but was disappointed to know that Soli Sorabjee even agreed to appear for TN. Nevertheless his arguments are worth debating:

"The effect of Article 31-B is to remove a fetter on the power of Parliament to pass a law in violation of fundamental rights. On account of Article 31-B, cause of action for violation of fundamental right is not available because the fetter placed by Part III of the Constitution on legislative power is removed and is non-existent". Here his sole argument relies on the "B" part of 31, where as 31-B is a mechanism for implementing 31-A which is very specific about land reform acts. 31-B does not have a leg to stand on without 31-A.

He goes on to say that "The same people who enacted the Constitution and the chapter on fundamental rights after full deliberations enacted article 31 B" . Agreed. But those people deliberated 31-B in the limited context of 31-A when there was great uncertainty about even what kind of laws and how many laws would be required to accomplish land reform. 31-B was not created in a superfluous ethereal vaccum with the purpose of removing the "fetter" on the legislative. If that was the purpose there was no need for Part III dealing with fundamental rights which would become appallingly watered down.

And then comes the argument of expediency: One of the reasons for putting an Act in the Ninth Schedule was to remove uncertainties about its validity arising out of forensic challenges of divided judicial pronouncements and to prevent time-consuming litigation which would impede speedy and effective implementation of the statute in question. This is the most ridiculous argument one can make: "I am going to enact a law. I don't care about its constitutionality. Different courts may arrive at different conclusions on that question..^[*] Litigation takes time and it is such a waste. To implement it effectively I am going to exempt it from judicial review. ". This is the kind of argument fathers make to their children : "This is right because I know it is right".

Ram Jethmalani the buffoon yesterday had tried to brow beat the bench by lecturing to them on the moral obligations of the society to the downtrodden, oppressed, suppressed. He was rightfully shot down by the bench that they were not hearing the inclusion of a specific law but the very question of the 9th schedule and its imits, which is where I think the focus should be.

^[*]
I know that the Supreme Court of India has the overall appellate jurisdiction over this matter, but it is irrelevant for me.