Ninth Schedule Judgment: A Critical Look

The recent judgment of the Supreme Court in the I R Coehlo versus State of Tamil Nadu case throws open previously protected laws in the ninth schedule of the Constitution to judicial review if they are found to violate fundamental rights and affect the basic structure of the Constitution. Even as the mainstream media and jurists have enthusiastically welcomed this judgment, it might be instructive to see the decision in a historical perspective and critically look at some of the premises of the judgment. A constant thread running through the judgment is that of the judiciary as the protector of fundamental rights. This compels examining the record of the judiciary with respect to freedoms and civil liberties.

The constitutionality of the first preventive detention law of independent India allowing for detention without trial was challenged by A K Gopalan, a leading member of the communist movement. The Supreme Court held that the detention law need not satisfy the test of reasonableness and upheld the legislation. In the Emergency era of 1975-77, the apex court upheld the suspension of the most fundamental of rights and declared that habeas corpus petitions could not be filed for the deprivation for life and liberty. The Terrorism and Disruptive Activities (Preventive) Act (TADA) making confession to the police admissible was upheld in 1994. The Armed Forces (Special Powers) Act (AFSPA) giving the power to shoot to kill with impunity was declared constitutional in 1997. The Prevention of Terrorism Act (POTA) was upheld as valid in 2004. Notwithstanding the stated concern for liberties in judgments, the judiciary seems to have failed the people on every occasion that called for a verdict upholding fundamental rights in the face of a draconian law.