The Supreme Court Upholds Constitutional Provisions On Governance And Rights In Scheduled Areas Under The Fifth Schedule Of The Indian Constitution And The Reservation Of Seats To Scheduled Castes In The Constituency Under Article 330 And 332.

Case title:

Adivasis for Social and  Human Rights Action vs. Union of India & Ors.

Date of Order:

May 10, 2023

Bench:  

Hon’ble Justice Abhay S. Oka

Parties:

Appellant- Adivasis for Social and Human Rights Action

Respondents- Union of India & Ors.

IMPORTANT PROVISIONS

• Fifth Schedule of the Constitution of India, which provides for the administration and control of Scheduled Areas in the country.
• Article 19(1)(e) of the Constitution of India, grants citizens the right to reside and settle in any part of the country.
• Part III of the Constitution of India, which guarantees the fundamental rights of all citizens.
• The Scheduled Areas Act, of 1950, which applies to the administration and control of Scheduled Areas and tribes in India.
• Articles 330 and 332 of the Constitution of India, provide for the reservation of seats in Lok Sabha and State Legislative Assemblies for Scheduled Castes and Scheduled Tribes.

OVERVIEW

• On December 31, 1977, the President of India declared the entire district of Sundargarh in the state of Orissa as a Scheduled Area, using powers granted by subclause (2) of Clause 6 of the Fifth Schedule to the Indian Constitution. 
• A registered society called the appellant then sought relief from the High Court under Article 226 of the Constitution of India. 
• In their writ petition, the appellant argued that, according to the Scheduled Area regulations, only members of Scheduled Tribes have the right to settle in the area. 
• They further contended that non-tribal residents of the Scheduled Area were unlawful occupants and therefore could not exercise their right to vote in any constituency in the area. 
• They also requested that all constituencies in the Scheduled Area be declared reserved constituencies under Articles 330 and 332 of the Constitution of India, and that only Scheduled Tribe candidates be allowed to contest Legislative Assembly and Lok Sabha elections in the Scheduled Area.
• Another argument made in the petition was that, according to subclause (1) of Clause 5 of the Fifth Schedule, none of the provisions of Central or State laws apply to a Scheduled Area unless the Governor of the State issues a specific notification applying those laws to that area. 
• Therefore, it was argued that the Representation of the People Act, 1950 and the Delimitation Act, 2002 are not applicable to the Scheduled Area in question due to the lack of such a notification. 
• The writ petition was dismissed by a Division Bench of the High Court of Orissa, and the appellant has now appealed to this Court following the grant of leave on February 14, 2012.

ISSUES RAISED

• Whether Acts passed by the Central and State Governments are applicable to a Scheduled Area without a specific notification from the Hon’ble Governor.
• Whether a non-Tribal has the right to vote in a Scheduled Area.

ARGUMENTS ADVANCED BY THE APPELLANT

• The primary argument put forth by the appellant's counsel is that no laws passed by either the Central or the State Legislature are applicable to a Scheduled Area unless the Hon'ble Governor issues a specific notification under subclause (1) of Clause 5 of the Fifth Schedule declaring that the law will be applicable to the Scheduled Area. 
• The counsel argues that Article 244(1) provides that the provisions of the Fifth Schedule must apply to the administration and control of Scheduled Areas, and thus, they should be treated as laws made by the Constitution of India. 
• The counsel contends that any law made by the Central or State Legislature cannot be applied to a Scheduled Area in the absence of a specific notification issued by the Hon'ble Governor and should be considered null and void. 
• He further argues that only laws made under the Constitution of India, in exercise of power under the Fifth Schedule, are applicable to Scheduled Areas. Any laws made by the State or Central Legislature in their application to the Scheduled Area would be in violation of Article 244 of the Constitution of India, and therefore, such laws are invalid.
• The argument presented is that it is the responsibility of the Hon'ble Governor of the State to determine which Acts of the Parliament or the State Legislature should be applied to the Scheduled Areas of the State. 
• The counsel further emphasized that before making any law applicable to a Scheduled Area, the Hon’ble Governor must issue a notification clearly stating which particular enactment needs to be applied. 
• According to the counsel, it is only when such a notification is issued that the Acts of Parliament or the State Legislature become applicable to a Scheduled Area. Without a specific notification that clearly mentions the title and other details of the Acts to be applied, no Act of Parliament or State Legislature can be made applicable to a Scheduled Area.
• The counsel representing the appellant cited court cases, namely Raja Bahadur Kamakshya Narain Singh of Ramgarh v. Commissioner of Income Tax Bihar [(1947) Federal Court Reports 130] and Chatturam v. Commissioner of Income Tax [(1947) Federal Court Reports 130], to support his interpretation of sub-clause (1) of Clause 5 of the Fifth Schedule and Chebrolu Leela Prasad Rao & Ors. v. State of Andhra Pradesh & Ors (2021)   11   SCC   526] The appellant has stated in their case that since the Land Acquisition Act, 1894 has not been notified by the Hon'ble Governor, it does not apply to the Scheduled Area. 

JUDGEMENT ANALYSIS

• The relevant provision in this regard is Clause 5 of the Fifth Schedule, which states that the Governor can issue a public notification directing that a particular Act of Parliament or the State Legislature will not apply to a Scheduled Area or will apply subject to certain exceptions and modifications specified in the notification. 
• The notification can also have a retrospective effect. The Governor can also make regulations for the peace and good governance of a Scheduled Area, including provisions related to land transfer, allotment, and money-lending. Such regulations can repeal or amend any existing laws applicable to the area. 
• All regulations made under this provision must be submitted to the President for assent before they can come into effect. The Governor must also consult the Tribes Advisory Council if one exists in the State before making any regulations.
• The Supreme Court ruled that the Government of India Act, 1935 has been repealed by Article 395. Section 92(1) of the Government of India Act, 1935 and Clause 5(1) of the Fifth Schedule are two different provisions.
• Section 92(1) provides that no law passed by the Federal or Provincial Legislature will apply to an Excluded Area unless the Governor directs so by a public notification. On the other hand, Clause 5(1) of the Fifth Schedule empowers the Governor to issue a notification to exclude a particular enactment, either State or Central, from applying to a Scheduled Area. 
• The Governor also has the power to modify the application of a particular enactment to a Scheduled Area. Clause 5(1) of the Fifth Schedule assumes that all State and Central laws which are otherwise applicable to a State will apply to Scheduled Areas in the State. Therefore, reliance on Section 92(1) of the Government of India Act, 1935 is not relevant.
• Supreme Court held that:
• All the Central and State laws that apply to the entire state of Orissa will continue to apply to the Scheduled Area unless a specific notification is issued by the Governor under Clause 5(1) of the Fifth Schedule, making a particular enactment inapplicable, either fully or partially.
• The power of the Governor under Clause 5 of the Fifth Schedule is limited to directing that a particular law will not apply to the Scheduled Area or will apply with specified modifications.
• The power of the Governor under Clause 5 of the Fifth Schedule does not override the Fundamental Rights under Part III of the Indian Constitution.
• Therefore, citizens can exercise the Fundamental Rights conferred by sub-clause (e) of Article 19(1) of the Constitution of India in relation to the Scheduled Area
• The Supreme Court also determined that under sub-clause (e) of Clause (1) of Article 19 of the Indian Constitution, every citizen has the right to reside and settle in any part of India. 
• However, reasonable restrictions can be imposed on this fundamental right through legislation, as provided for in Clause (5) of Article 19. As a result, the argument that non-Tribals do not have the right to settle in a Scheduled Area was dismissed by the Supreme Court.
• As far as the second issue is concerned, The Supreme Court ruled that the 1950 Act applies to the Scheduled Area, and thus, the appellant's argument that only a person belonging to a Scheduled Tribe can vote in elections within the Scheduled Area is invalid. 
• The right to vote is governed by Part III of the 1950 Act. Any eligible voter who ordinarily resides in the Scheduled Area, regardless of whether they are a Tribal or not, has the right to be registered in the electoral roll of the constituency and to vote.
• In regards to the reservation of Lok Sabha and State Legislative constituencies in a Scheduled Area, the appellant's argument that all constituencies should be reserved for Scheduled Tribes is not valid. 
• Reservation is governed by Articles 330 and 332 of the Constitution of India, which do not mandate that all constituencies in Scheduled Areas should be reserved for Scheduled Tribes. Additionally, the 2002 Act is applicable in the Scheduled Area, so the request for a writ of mandamus regarding reservation for Scheduled Tribes must also be rejected.
• The Supreme Court concluded that the appeal has no merit, and the High Court's decision to dismiss the writ petition was correct. However, considering the appellant's claim that they work for the welfare of the tribals, the court decided not to impose any costs on them.

CONCLUSION

• In conclusion, the Supreme Court of India held that all central and State laws applicable to the entire state of Orissa will continue to apply to the Scheduled Area, unless there is a specific notification issued by the Governor. 
• The power of the Governor under Clause 5 of the Fifth Schedule is restricted to directing that particular law will not apply to the Scheduled Area or it will apply with modifications as specified in the notification. 
• The Fundamental Rights conferred by sub-clause (e) of Article 19(1) of the Constitution of India can also be exercised in relation to the Scheduled Area. 
• As per the court's decision, any eligible voter who is ordinarily residing in the Scheduled Area has a right to vote, even if they are a non-Tribal. 
• The court rejected the appellant's contention that all constituencies in the Scheduled Area should be reserved for Scheduled Tribes and also rejected the prayer to issue a writ of mandamus as regards the reservation for the Scheduled Tribes. 
• The court held that there is no merit in the appeal, and the High Court was right to dismiss the writ petition filed by the appellant.