Friday, January 12, 2007

End of Legislative Majoritarianism ?

The judgement of the nine judge constitution bench of the Supreme Court, regarding the acts in ninth schedule, has now opened the acts that were beyond judicial scrutiny to judicial challenges. The Bench held that all such laws included in the Ninth Schedule after April 24, 1973 would be tested individually on the touchstone of violation of fundamental rights or the basic structure doctrine.

From what I can glean, the land ceiling acts of Andhra Pradesh, Bihar, Gujarat, Haryana, Kerala, Madhya Pradesh, Himachal Pradesh,Karnataka, Punjab, Rajasthan, West Bengal, Maharashtra, Orissa, Uttar Pradesh, Dadra & Nagar Haveli, Tamil Nadu, Gujarat, Assam (or shall I say every state's land ceiling act ? ) is now open for scrutiny. So too are the urban land ceiling acts (ULCA) . The fifty year saga of curtailment of property rights now has some hope of being reversed.

Also it opens up for scrutiny The Industries (Development and Regulation) Act, The Monopolies and Restrictive Trade Practices Act,The Foreign Exchange Regulation Act,The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,The Essential Commodities Act. It also potentially nullifies Tamil Nadu's law to circumvent the 50% reservation limit. Here is a complete list ( Word Doc) of acts in the ninth schedule. My interpretaion is that all acts, starting with 67. The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, would be open for scrutiny.

The worst acts in India, in terms of curtailment of freedom have always found their way into the Ninth Schedule. Any one remember the dreaded MISA (The Maintenance of Internal Security Act) ? It was under this schedule that it found sanctuary. So too the The Prevention of Publication of Objectionable Matter Act, 1976, which attempted to curb the freedom of the Press.

This judgment taken along with the famous basic structure of the Constitution judgement ensures that the Constitution of India will be not be subject to legislative majoritarianism. It adds some welcome rigidity to the Constitution as far as guarantee of Fundamental Rights are concerned. If this judgement were not there, nothing really stops, say a fundamentalist party with a brutal parliamentary majority, from changing India's constitution to make it less secular & hiding that piece of legislation under the ninth schedule.

Just as the abrogation of property rights has come back to bite the very people it was supposed to help [ Refer earlier post on property rights ], any attempt to undermine the spirit of these judgements, will come back to bite at a later date.

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