Judiciary Must Not Undermine Democracy and Social Justice
- Kavita Krishnan
The Supreme Court’s verdict of January 11, declaring that the laws in the Ninth Schedule do not enjoy “absolute immunity” from judicial review, has immediately led to litigation challenging caste-based quotas on the ground that they violate fundamental rights guaranteed by the Constitution. This verdict of the Supreme Court raises disturbing questions about the role of judiciary in a democracy.
It is significant that the Ninth Schedule had been introduced by means of a Constitutional Amendment Article 31 B, in the wake of a slew of litigation challenging Land Reform laws on the ground that they were violative of the right to property (then a fundamental right). Laws in the Ninth Schedule were protected from being struck down by courts.
In 1973, in the Keshavananda Bharati case challenging the Kerala Land Reforms Act, the Supreme Court for the first time held that any law, including a Constitutional Amendment, which altered the “basic structure of the Constitution”, could be struck down. The January 11 judgement reiterates that the Supreme Court is empowered to strike down any law included in the Ninth Schedule if, according to it, the law violates the basic structure of the Constitution and was inserted after April 24, 1973 (the date of the Keshavananda Bharati verdict).
A large number of laws included in the Ninth Schedule after 1973 that will thus become vulnerable to judicial review include the Urban Land Ceiling Act, 1976, the Bonded Labour System (Abolition) Act, 1976, the Coal Mines (Conservation and Development) Act, 1974, the Sick Textile Undertakings (Nationalisation) Act, 1974, and the Tamilnadu Backward Classes, SC/ST (Reservation of Seats in Educational Institutions Act, 1993).
What constitutes the “basic structure” of the Indian Constitution? Does social justice undermine rights and equality – or strengthen it? If the Supreme Court has its way, then it is the judiciary (a self-appointed body without any democratic accountability) rather than Parliament which has the supreme right to interpret the core of the Constitution, and thereby override laws passed in the interests of social justice by a democratically elected body of representatives. As a senior Supreme Court advocate put it, this verdict gives the courts the power to virtually rewrite the Constitution through interpretation!
Defenders of the verdict have argued that the Ninth Schedule stands a risk of being misused by, say, the BJP which might conceivably use it to protect an anti-Conversion law from judicial intervention. The verdict itself cites the instance of Emergency in its favour, when laws restricting freedom of expression were placed in the Ninth Schedule. But it seems to forget that these very laws were repealed – not on the instance of the judiciary, but by the Parliament itself subsequently. The corrective to misuse of the Ninth Schedule came from within the democratic process, and not from beyond.
Further, on the innumerable occasions when laws violating fundamental rights have been passed by Parliament, courts have overwhelmingly played along, and have never acted to strike down such laws – even though such laws were not safeguarded by the Ninth Schedule. Overwhelmingly, on cases of TADA, POTA, or AFSPA, on matters of slum eviction and displacement, courts have acted in tandem with Governments rather than as a guardian of the fundamental rights of citizens, especially if the citizens happen to be from among the poor and deprived. The fact that the BJP (loudest in its intention to rewrite and undermine all that is liberal or democratic in the spirit of the Constitution) itself has unequivocally hailed the verdict, proves that it sees far greater anti-democratic potential in the judiciary than in the Parliament or the Ninth Schedule!
The verdict, though it locates itself in the discourse of rights, smacks of the dangerous and authoritarian trend of denigrating democracy and ‘politics’ and implying that decisions about fundamental rights and Constitution are best taken by institutions that are ‘above’ and ‘beyond’ ‘politics’ and ‘democracy’. Ironically, it is Governments which fostered this notion, by invoking courts to impose unpopular decisions. The fact is that decisions taken by Courts are in no way less political – and increasingly they have taken vehement sides in favour of liberalisation, against working class rights and against social justice. Rather than being left to an all-powerful judiciary that is accountable to none, political decisions are best debated and made through democratic processes and institutions.
Those defending the verdict point out that in this age of liberalisation, Governments themselves are all too ready to dismantle land reforms. This, they say, will render the original purpose of the Ninth Schedule redundant. It is all too clear, however, that the Ninth Schedule protects a range of laws relating to land and social justice, and symbolises the recognition, however partial, of the fact that equal laws applied blindly in an unequal society amount to upholding the law of ‘might is right’. This recognition needs protecting – both from the judiciary as well as, on many occasions, from the executive as well, in an age when courts and assemblies recognise the ‘rights’ of corporates over those of people. And for the poor and underprivileged, the battle for their rights is easier fought against elected bodies than against faceless and authoritarian courts.