All political parties without exception have expressed their unhappiness with the Supreme Court's recent judgement in the P.A. Inamdar case, in which the Court declared that the State cannot impose its reservation policies and quotas on private unaided colleges (which take no money from the State).
There seems to be a consensus among political parties for amending the Constitution to impose the State's reservation policies on the private unaided colleges. Any attempt to amend the Constitution*, is likely to result in legal tangles and the 1973 Kesavananda Bharati judgement will be the key to interpreting any new legislation.
A report in The Hindu (August 29, 2005) quotes Soli Sorabjee, the eminent lawyer saying as much.
The former Attorney-General, Soli Sorabjee, said the legislation proposed by the Centre would come under judicial scrutiny. Any law that affected the basic structure of the Constitution could come under legal scrutiny, and the Supreme Court could strike it down.
He disagreed with the view that if the proposed law were to be included under the Ninth Schedule, it would become non-justiciable. On Centre's plan to enact a law on the subject, he said it had to be interpreted whether it falls under the ambit of the basic structure of the Constitution.
An article on the basic structure of the Indian Constitution on the Commonwealth Human Rights Initiative web site throws some light on the Ninth Schedule of the Constitution.
Parliament added the Ninth Schedule to the Constitution through the very first amendment in 1951 as a means of immunising certain laws against judicial review. Under the provisions of Article 31, which themselves were amended several times later, laws placed in the Ninth Schedule -- pertaining to acquisition of private property and compensation payable for such acquisition -- cannot be challenged in a court of law on the ground that they violated the fundamental rights of citizens. This protective umbrella covers more than 250 laws passed by state legislatures with the aim of regulating the size of land holdings and abolishing various tenancy systems. The Ninth Schedule was created with the primary objective of preventing the judiciary - which upheld the citizens' right to property on several occasions - from derailing the Congress party led government's agenda for a social revolution.
Later on, laws relating to the nationalisation of certain sick industrial undertakings, the regulation of monopolies and restrictive trade practices, transactions in foreign exchange, abolition of bonded labour, ceiling on urban land holdings, the supply and distribution of essential commodities and reservation benefits provided for Scheduled Castes and Tribes in Tamil Nadu were added to the Ninth Schedule through various constitutional amendments.
But the famous Kesavananda Bharati judgement in 1973, changed everything.
All laws placed in the Ninth Schedule after the date of the Kesavananda Bharati judgement were open to review in the courts. They can be challenged on the ground that they are beyond Parliament's constituent power or that they have damaged the basic structure of the Constitution. In essence, the Supreme Court struck a balance between its authority to interpret the Constitution and Parliament's power to amend it.
A.N. Jayaram, former Advocate-General of Karnataka is quoted in Frontline (August 2004) as saying,
It is settled law "that a post-1973 legislation will not acquire judicial immunity merely by inclusion in the Ninth Schedule and can be subjected to judicial review".
A detailed article in Frontline (May 2001) has this to say on the basic structure doctrine in the context of the Kesavananda Bharati case.
On April 24, 1973, a Special Bench comprising 13 Judges of the Supreme Court of India ruled by a majority of 7-6, that Article 368 of the Constitution "does not enable Parliament to alter the basic structure or framework of the Constitution" (Kesavananda Bharati vs. The State of Kerala; AIR 1973 S.C. 1461, (1973) 4 SCC 225).
It, however, overruled a decision of a Special Bench of 11 Judges, by a majority of 6-5, on February 27, 1967, that "Parliament has no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights" (I.C. Golak Nath & Ors. vs. The State of Punjab & Ors.: AIR 1967 S.C. 1643, (1967) 2 SCJ 486).
Instead, the court propounded what has come to be known as "the basic structure" doctrine. Any part of the Constitution may be amended by following the procedure prescribed in Article 368. But no part may be so amended as to "alter the basic structure" of the Constitution. It is unamendable.
Here's the relevant extract from the Kesavananda Bharati Judgement.
292. The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features :
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the executive and the judiciary;
(5) Federal character of the Constitution.293. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.
Soli Sorabjee had assisted Nani Palkhivala in arguing the Kesavananda Bharati case in which Palkhivala persuaded the Supreme Court to accept the basic structure doctrine. Soli Sorabjee, while delivering the First Palkhivala Memorial lecture on Palkhivala and the Constitution of India in February 2003 in Chennai, said
To my mind, Kesavananda Bharati was Palkhivala's greatest contribution to our constitutional jurisprudence. The judgment has been a salutary check on Parliament's tendency to ride roughshod over fundamental rights and its insatiable appetite to encroach upon fundamental rights.
What outraged Palkhivala was the tinkering with the Constitution by the politicians, its frequent amendment as if it were a Municipal Licensing Act or the Drugs Act, the failure to preserve the integrity of our Constitution against many hasty and ill-considered changes, the fruits of passion and ignorance. His firm belief was that Parliament's amending power is not absolute, the amending power is subject to inherent and implied limitations which do not permit Parliament to destroy any of the essential features of the Constitution and thereby damage the basic structure of the Constitution.
The Kesavananda Bharati judgement is likely to be the key to interpreting and challenging any new legislation or constitutional amendment, imposing the State's reservation quotas on private unaided colleges, to determine if it violates the basic structure of the constitution or not.
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* The Rajya Sabha web site provides an overview of Parliament's power to amend the Constitution, the salient features of Article 368, which confers the power on Parliament to amend the Constitution and prescribes the procedure to do so, the various Constitution Amendments introduced in the Rajya Sabha, and the three categories of amendments - by simple majority, by special majority and by ratification of at least half of the State Legislatures after being passed by a special majority.
