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Former Gauhati HC judge bats for legislation under 9th schedule

By AJIT PATOWARY

GUWAHATI, Jan 16 - Those who are clamouring that the agitation against the Citizenship (Amendment) Act is an insult to Parliament are, in fact, going against the provisions of the Constitution of the country. The Constitution of India has guaranteed freedom of speech and expression and to assemble peacefully to exercise this right, according to former Gauhati High Court Judge Dr Thir Narayan Singh.

Dr Singh, who was speaking to this correspondent, asserted that the ultimate truth is that the ultimate power vests in the people and Parliament merely exercises a delegated authority.

He advocated a constitutional guarantee under Schedule Nine of the Constitution for the people of Assam. The Parliament should enact a piece of legislation, which will make it obligatory for the rulers to go for a referendum whenever they want to go for a legislation like the CAA, if there is any protest from the indigenous people who fear that their right over their native land would be jeopardised by such legislations, like the CAA, said Dr Singh.

Dr Singh regretted the fact that the people of Assam are forced to launch agitations from time to time to react vigorously against measures enacted to threaten their cultural and demographic security.

As a permanent solution to bring an end to the CAA-like impositions, Dr Singh said the provision of such constitutional measures under the 9th Schedule of the Constitution should be inserted in the law framing procedure, allowing a full play to the legal maxim � �Salus populi suprema lex esto�. This will widen the scope of the popular protests against draconian legislations like the CAA, he said.

�Salus populi suprema lex esto� is a Latin legal maxim that means � �Let the welfare of the people be the ultimate law�. It was propounded by Roman politician and political theorist Marcus Tullius Cicero (106 BC-43 BC).

The 9th Schedule of the Constitution was drafted by the first government of independent India under the leadership of Prime Minister Jawaharlal Nehru. It represents a drastic but innovative technique of amending the Constitution. It is a method to bypass the judicial review and judicial scrutiny. Any legislation, which is added under the 9th Schedule, gets immunity against judicial scrutiny, even if it infringes the fundamental rights of an individual.

The immediate objectives of this Schedule were � implementation of various land reforms after independence, abolition of zamindari system, immunization of certain legislations, which prevent reforms and pose threat to fundamental rights, to uphold the interests of the weaker sections of the society, to meet the constitutional goal of establishing an egalitarian society and to reduce the concentration of land in few hands, among others.

It, however, needs mention here that the Supreme Court of India on April 24, 1973 ruled that Parliament cannot curtail the fundamental rights of an individual. In the Keshavananda Bharati versus State of Kerala case, the Supreme Court introduced a new concept of �Basic structure of the Indian Constitution� and stated, �All provisions of the Constitution can be amended, but those amendments which will abrogate or take away the essence or basic culture of Constitution which included Fundamental Rights are fit to be struck down by the court.�

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Former Gauhati HC judge bats for legislation under 9th schedule

GUWAHATI, Jan 16 - Those who are clamouring that the agitation against the Citizenship (Amendment) Act is an insult to Parliament are, in fact, going against the provisions of the Constitution of the country. The Constitution of India has guaranteed freedom of speech and expression and to assemble peacefully to exercise this right, according to former Gauhati High Court Judge Dr Thir Narayan Singh.

Dr Singh, who was speaking to this correspondent, asserted that the ultimate truth is that the ultimate power vests in the people and Parliament merely exercises a delegated authority.

He advocated a constitutional guarantee under Schedule Nine of the Constitution for the people of Assam. The Parliament should enact a piece of legislation, which will make it obligatory for the rulers to go for a referendum whenever they want to go for a legislation like the CAA, if there is any protest from the indigenous people who fear that their right over their native land would be jeopardised by such legislations, like the CAA, said Dr Singh.

Dr Singh regretted the fact that the people of Assam are forced to launch agitations from time to time to react vigorously against measures enacted to threaten their cultural and demographic security.

As a permanent solution to bring an end to the CAA-like impositions, Dr Singh said the provision of such constitutional measures under the 9th Schedule of the Constitution should be inserted in the law framing procedure, allowing a full play to the legal maxim � �Salus populi suprema lex esto�. This will widen the scope of the popular protests against draconian legislations like the CAA, he said.

�Salus populi suprema lex esto� is a Latin legal maxim that means � �Let the welfare of the people be the ultimate law�. It was propounded by Roman politician and political theorist Marcus Tullius Cicero (106 BC-43 BC).

The 9th Schedule of the Constitution was drafted by the first government of independent India under the leadership of Prime Minister Jawaharlal Nehru. It represents a drastic but innovative technique of amending the Constitution. It is a method to bypass the judicial review and judicial scrutiny. Any legislation, which is added under the 9th Schedule, gets immunity against judicial scrutiny, even if it infringes the fundamental rights of an individual.

The immediate objectives of this Schedule were � implementation of various land reforms after independence, abolition of zamindari system, immunization of certain legislations, which prevent reforms and pose threat to fundamental rights, to uphold the interests of the weaker sections of the society, to meet the constitutional goal of establishing an egalitarian society and to reduce the concentration of land in few hands, among others.

It, however, needs mention here that the Supreme Court of India on April 24, 1973 ruled that Parliament cannot curtail the fundamental rights of an individual. In the Keshavananda Bharati versus State of Kerala case, the Supreme Court introduced a new concept of �Basic structure of the Indian Constitution� and stated, �All provisions of the Constitution can be amended, but those amendments which will abrogate or take away the essence or basic culture of Constitution which included Fundamental Rights are fit to be struck down by the court.�

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