'TN Act on reservation under 9th schedule illegal'
New Delhi, Oct. 31 (PTI): Amid the ongoing debate on reservation, the Supreme Court was today told that the inclusion of Tamil Nadu law enabling 69 per cent quota in educational institutions and government jobs in ninth schedule of the Constitution was illegal and unconstitutional.
The Act has been put in the ninth schedule without undergoing the test of validity, advocate K M Vijyan, appearing for the NGO, VOICE Consumer Care Council, told a nine-judge Constitution Bench which is examining the scope of judicial review about the law put in the schedule.
Referring to the Indra Sawhney judgement (Mandal Case) of the apex court which put a ceiling of 50 per cent reservation, the counsel told the Bench headed by Chief Justice Y K Sabharwal that "the state has no legislative competence to provide or make special provision for reservation over and above 50 per cent".
He said the inclusion of the Tamil Nadu Act in the ninth schedule by invoking Article 31B was beyond the scope of being saved under that provision.
The Counsel said since the Act was not passed under Article 31A, it cannot be included in the ninth schedule.
While Article 31A enables passing of laws of defined category, Article 31B does not define the category of laws which are to receive protection from judicial review.
Terming the Tamil Nadu Act as a fraud on Constitution, he said statistics reveals in the admisssion in the medical college for the past 10 years, there was hardly any difference in the merit list prepared with quota or without quota.
The counsel was arguing before the Bench also comprising Justices Ashok Bhan, Arijit Pasayat, B P Singh, S H Kapadia, C K Thakker, P K Balasubramanyan, Altamas Kabir and D K Jain.
Senior advocate Harish Salve also disfavoured a legislation held to be invalid by the court of law to be placed under the ninth schedule to protect it from the judicial review.
The nature and character of an amendment to Article 31B is that each time a new legislation was to be conferred with immunity it would require a re-enactment of Article 31B which would be per se violative of the basic structure of the Constitution, he said.
The re-enactment of Article 31B would be violative as its avowed purpose was to exclude judicial review of the legislation or to nullify the judicial verdict of unconstitutionality without amending the constitution which is akin to a bill of attainder, Salve said.
The former Solicitor General said that the submission that Art 31B was valid because the "insertion" of individual laws in the ninth schedule can be assailed on the doctrine of Basic structure was untenable.
"It confuses the nature of the basic structure doctrine with the constitutional limitation contained in Art.13. The former is an implied limitation in the power conferred under Art 368 - the latter a limitation upon legislative powers conferred upon the Union and the State legislatures," Salve contended.