President’s  Message

The recent judgment of the Supreme Court curbing the unlimited power exercised by Parliament to put Laws beyond judicial review by putting them under the protective umbrella of the IX Schedule, is a landmark not only for the reason that it affirms the sanctity of the fundamental rights, but also for the reason that it prevents the violation of the Constitution by unscrupulous politicians who have their eyes only on vote banks.

Article 31B of the Constitution inserted by the First Amendment in 1951 provides a protective umbrella against judicial intervention on grounds of violation of fundamental rights under Part III of the Constitution. While in Kameshwar Singh’s case (AIR 1952 S.C 251), the Supreme Court, for the first time, allowed the challenge to the Bihar Land Reforms Act, not withstanding the protection granted under Article 31B, in Dhirubha Gohil’s case (AIR 1955 S.C 47) the Court held that the protection under Article 31B provided a total ban against attack on the grounds of constitutionality. The view taken by courts on the scope of Article 31B has empowered the Parliament to misuse the umbrella of protection granted by Article 31B with impunity and enact Laws incompatible not only with fundamental rights, but even violative of the basic structure of the Constitution. The politicians at the Centre and in the States have used this as a tool to promote politics of division to create vote banks to protect their position, rather than the security and integrity of the Nation.

While the framers of the Constitution intended the protection to be an exception and not the Rule, the course of events have clearly established that political intrigue would not stop at anything to achieve its supremacy. The List of Laws placed under Schedule IX have gone up over the years from 13 to 284. While 13 Laws were included in 1951, seven Laws were included in 1955 and 44 in 1964. There was a respite with only 2 additions in 1972 while in 1974, 20 Acts were added. 1976 saw inclusion of 38 Laws out of which, 2 were deleted in 1979. In 1976, as many as 63 Acts were brought under the protection, out of which 1 was deleted in 1979. Fourteen were included in 1984 while 54 were added in 1990. The Tamil Nadu Act 45 of 1994 relating to Reservation of Seats in Educational Institutions and Services under the State was added in 1994 while 1995 saw the addition of 27 Acts.
The sequence in which these Acts were made not amenable to judicial review would clearly indicate a concerted effort to undermine the fundamental rights in an attempt to establish political supremacy of vested interests.

The following observation of the Supreme Court emphasizes the need for a healthy check on politicians converting the Legislature, an essential limb of Democracy, into a political bastion, to subserve only the needs of vote banks and establish hegemony over the Public, denying them the basic rights guaranteed to them under the Constitution.

“The framers of the Constitution have built a wall around certain parts of fundamental rights, which have to remain for ever, limiting the ability of the majority to intrude upon them. That wall is the Basic Structure doctrine. It cannot be said the same Constitution that provides for a check on the legislative power will decide whether such a check is necessary or not. It would be a negation of the Constitution.”

Various decisions of the Supreme Court starting from Kesavananda Bharati’s case, have made a discerning distinction between fundamental rights, forming part of the basic structure and affecting core values such as right to life and liberty, equality of opportunity and the freedom of speech.

While the judicial intervention has made every attempt to keep the balance of power under the Constitution, it is necessary in the interests of the welfare of the State and the citizens, that political reaction should be moderate and should realize that the judgment is a necessary and inevitable reaction to the over-reaching by the politicians and the judicial verdict is the result of the blatant misuse of the constitutional guarantee under Article 31B to support political convenience. It is as the Economic Times put it, “Daniel Come to Judgment”.

It is high time that the politicians realize, in the interests of the citizens and the progress of the Nation that:

“Article 31B cannot be used so as to confer unlimited power. Article 31B cannot go beyond the limited amending power contained in Article 368 (power to amend the Constitution”.

V. Ramachandran
President