P&H HC | Answer to the question on ‘fundamental rights vis-a-vis judicial review’ considered as ‘National Confusion’ as different interpretation possible

Punjab and Haryana High Court: Rajbir Sehrawat. J., contemplated and answered the interesting question asked in the recruitment test on which the dispute of the petitioner revolves around. Thorough interpretation of judgments starting from Sankari Prasad to I.R. Coelho was analysed by the Court to formulate the correct answer asked in the recruitment test.

73. Which of the following schedule of the Constitution is immune from judicial review on the grounds of violation of fundamental rights?

A) Seventh Schedule B) Ninth Schedule C) Tenth Schedule D) None of the above”

Facts:

Petitioner sought a correct answer to the above said question asked in Law Officer Recruitment Test. The petitioner answered and claimed that ‘D’ (none of the above) is the correct answer. He was not awarded mark any marks; instead a negative mark was assigned. The respondents communicated that according to them ‘B’ (9th Schedule) is the correct answer. Petitioner challenged the said interpretation given by the respondents with a further assertion that if his answer was taken as correct then he will get the mark for the same and will be selected as per his merit. Hence, it was submitted that on account of wrong answer taken by the respondents; the right of the petitioner to seek public employment has been jeopardised.

Analysis and Decision:

The most interesting part of this judgment is that the Court has answered the objective question wonderfully in a subjective way while deciding on the contention of the petitioner. There were two approaches taken by Court.

  1. a) Simplistic answer: Under Article 31-B of Constitution of India, immunity is provided to the laws included in the ‘Ninth Schedule’ from being declared as null and void on the ground of such law being violative of fundamental rights. On the contrary, the Supreme Court has upheld the Article 31-B and accordingly, the laws included in Ninth Schedule; despite the same being directly violating the fundamental rights of the citizen affected by such law. “Hence, the answer to the question asked in the above said exam has to be, necessarily, ‘B’ (Ninth Schedule).”
  2. b) Complex answer: While answering the question the Court relied upon the judgment of Supreme Court in R. Coelho v. State of Tamil Nadu, (1999) 7 SCC 580, where it was held that, after 24.4.1973, no amendment for adding laws to the Ninth Schedule is immune from judicial review and the test would be whether it violates the basic feature of the Constitution. Essence of certain rights conferred by Part III was also upheld. However, the Court observed that the complex answer did not satisfy the requirement of the question asked in the test.

It was observed that the judgment of the Supreme Court was heavily laced with ‘ifs’ and ‘buts’, whereas the answer required was in an objective form, choosing the answer from the given options. It was held, “therefore, the petitioner has been asked to answer the question relating to the constitutional interpretation in such clear terms of ‘yes’ or ‘no’ in which even the Supreme Court of India has not been able to answer so far despite the sequential clarifications by the same Judge spanning over more than one of his judgments and the random and parallel clarifications by several Judges of the Supreme Court in several judgments; rendered through the larger Benches.”

The Court observed that the respondents have taken cue from the language of the Supreme in the various judgments and justified their answer as in their opinion the Supreme Court has abolished the immunity from judicial review granted to the Ninth Schedule only for violation of basic features and not for violation of fundamental rights as such. However, the petitioner relied upon the same language of the same judgment of the Supreme Court, and submitted that since all inclusion of laws in Ninth Schedule after 24.4.1973 have been held to be liable to be subjected to judicial review; therefore, Ninth Schedule is no more exempted from judicial review. Hence, it was the contention of the petitioner that the correct answer should have been ‘D’ i.e ‘none’.

The Court opined that, “the contrasting stands of the parties have raised an issue, which can aptly be called a ‘national confusion’. The confusion is always a byproduct of deviation from or avoidance of straight logical deductions. Any inflectional language struggling to justify itself, though harnessed with eloquence, cannot be a substitute for as simple and clear language as ‘yes’ or ‘no’.”

 The Court while dismissing the petition did not find any substance in the argument of the petitioner to justify the answer presented by him. It was held that, “the language of Article 31-B grants immunity to the law included in the Ninth Schedule from being declared void on the ground of the violation of the fundamental rights; as was, otherwise, mandated by Article 13 (2). As observed in foregoing paragraphs, Article 31-B which grants this immunity, as such, has not been set aside by the Hon’ble Supreme Court, till today.”

Therefore, the Court decided that the respondent has logically explained the correct answer as immunity from challenge to the law on mere violation of a fundamental right still exists.

The Court further proscribed all public selection bodies, including the Services Selection Boards and Public Service Commissions operating within or under the control of the State of Punjab, Haryana, UT Chandigarh or the Union of India, including UPSC from asking the above said question as multiple-choice type/ objective type. The Court opined that the question asked needed lots of explanations for being answered correctly and does not, straightway admitted the precise answer, therefore, this question or a question analogous thereto, if asked as a multiple choice type of question, has the potential of damaging the right of citizen to get public employment; like the petitioner of the present case. Therefore, this question is better not asked as a multiple choice type of question in any public examination conducted for selection of candidates for public employment.[Amit Kumar v. Municipal Corporation, 2022 SCC OnLine P&H 678, decided on 07-02-2022]


Appearances:

Mr. Kapil Kakkar, Advocate for the petitioner.


Aastha Sharma, Editorial Assistant has reported this brief.

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