9th Schedule

At last the supreme court has ruled that no law can be protected from judicial scrutiny, just because they are put in the 9th schedule. This 55 year old schedule, was a way of legislation usurping the power it wasn’t intended to have.

But, there is huge argument about the supreme court having a power it wasn’t meant to have. This is a faulty argument. Supreme curt was always meant to have a jurisdiction, and our founding fathers made supreme court the watchdog of our constitution. The supreme court is susceptible to the public opinion and mood as is a legislature. The difference is that a legislature is accountable to majority (in Indian context that means about 30% of voters), that may have vested interest in trampling on the rights of minority. I have always believed that is the beginning of mobocracy.

Judges are not immune to social trends. In times of socialism, judges rarely ruled against patently socialistic laws (like labor laws). However as things are becoming more capitalistic, more and more judges are ruling against unionisms, strikes etc. So, it isn’t that judges will be insensitive to larger public good. But, they certainly will be far more sensitive to the balance needed, as they aren’t worried about immediate public mood. And we need an organ to safeguard our rights, from legislation made in passion of the moment.

There is another angle to non-accountability of judiciary. While it is true that judges are not directly accountable to people, they can be impeached by a 2/3rd majority in parliament. If it can be found that judges are running amok, there is again a balance provided in constitution to remove them. But, to get a larger public support, it should be based on the clear mis-steps of judiciary, rather than just whims of the legislature.

So, that’s what it all comes down to. What does the public support… In 1951, when 9th schedule was formed, public had goodwill for politicians and they could get away by restricting the judiciary from overruling certain laws. Today, our belief in parliament and executive isn’t what it was in 1951. That is why Judiciary is more assertive, because that is the organ that is lively and responding to people’s aspirations. In case in future judiciary decays, I am sure legislature and executive will gain back their primacy. But, until then we are safer with a more functioning organ of state – the judiciary.