Day: January 11, 2007

Indian Supreme Court to Review Hitherto Sacrosanct Laws

BBC NEWS | South Asia | India court opens laws to review

Judges led by the chief justice closed a loophole that has kept some laws from their scrutiny in a part of the constitution called the Ninth Schedule. The Ninth Schedule was created in 1951 to help protect progressive laws on land reform and ending feudalism, but critics say it has since been misused.

Unfortunately, a shortsighted solution to a problem will be misused. Shielding laws from judicial review is good if you have a reform minded  legislative, and an atavistic judiciary, which was presumably the case in 1950s India. Nehru and his parliament, fresh from the independence struggle, and eager to transfer power from the entrenched zamindari system to the proletariat enacted the ninth schedule as part of the first amendment to the constitution.
The judiciary, and I am guessing here (this is a blog, isn’t it!), was probably filled with remnants of the British Raj civil service, and hence full of entrenched interests. The situation is reversed now, with the judiciary (the higher reaches, that is) coming up through the ranks as lawyers, and the politicians, well, being Indian politicians!

Bad law enacted for a good purpose is still bad law, and this judgment will bring some sanity into lawmaking.

BTW, the list of laws that will come under scrutiny is long, it is a bunch of land reform, industry nationalization and tribal rights acts that will not be challenged. Number 116:

116) The Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of appointments or posts in the Services under the State) Act, 1993 (Tamil Nadu Act 45 of 1994).

This is the one that precipitated the review. This law called for a 69% of all college admissions in government institutions be based on a quota system to benefit “backward castes”. The supreme court had instituted a 50% cap. This law is sure to be challenged and since the protection under the 9th schedule is lost, will surely be overturned.