Document Fragment View

Matching Fragments

18. The classification created within the scheduled tribes to benefit only the candidates or their parents continuously residing in the scheduled areas since 26.1.1950 is arbitrary, illegal, and discriminatory vis­à­vis the scheduled tribes also, besides other categories. The executive order could not have provided the reservation. The legislation was imperative to provide for a 100% reservation. Testing the case on the anvil of the doctrine of basic structure is not germane as it is not a case set up that provisions under Para 5 of Schedule V are against the basic structure of the Constitution. The provisions of Para 5 of Schedule V are not questioned, but only the legality of the action taken thereunder. The right of judicial review is available in case of any action taken, which is per se illegal, arbitrary or violative of fundamental rights and sans any basis.

There is no repugnancy with the Presidential Order issued under Article 371D. Article 371D(10) provides for the non­obstante clause to make the provisions immune from challenge under Articles 14 and 16 of the Constitution of India. The provisions made in Para 5 of Schedule V have to be viewed on a similar anvil.

31. Shri Shivam Singh, learned counsel appearing on behalf of some of the respondents, argued that the basic structure doctrine is inapplicable, the original constitutional text must not be employed to test the impugned action. Schedule V under Article 244(1) of the Constitution is part of the original text. Hence, it must not be tested on the touchstone of the basic structure violation. He argued by referring to the decisions of this Court that the constitutional amendments post­1973 can be struck down if they violate the basic structure doctrine and not the original text of the Constitution. The non­obstante clause in Para 5(1) Schedule V continues to hold and occupy the field. The rigours of the basic structure doctrine may hit Article 371­D but cannot affect Schedule V. Article 14 cannot be used to defeat intendment of the non­obstante clause of Schedule V.

58. Manifold arguments are made in this regard. Firstly, it was argued on behalf of the respondents that the basic structure doctrine is inapplicable upon the Constitution's original text. It must not be employed to test the validity of the impugned action. The fifth Schedule under Article 244(1) of the Constitution is part of the original text, and hence, it must not be tested under the Basic Structure Doctrine. Reliance has been placed on Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225 in which this Court laid down that Constitutional amendments post­1973 can be struck down if they violate the Basic Structure Doctrine.

60. Reliance has also been placed on the decision of this Court in I.R. Coelho (Dead) by LRs. v. State of T.N., (2007) 2 SCC 1, decided by a nine­Judge Bench of this Court thus:

“151. The effect of the application of the limitation of the basic structure to a scheduled Act is that Article 31-B read with the Ninth Schedule is no longer not subject to judicial review. Judicial review is, therefore, very much present.” Thus, it was urged that since the original text of the Constitution is contained in the Fifth Schedule, it would not be permissible to test the same in terms of the basic structure. Article 14 is the part of the basic structure; therefore, it cannot be used to dilute the non­obstante clause of Para 5(1) of Fifth Schedule, and action taken thereunder cannot be tested on the anvil of violation of fundamental rights.