Non-Tribal Person's Right To Settle Down & Vote In Scheduled Areas Not Taken Away By 5th Schedule Of Constitution : Supreme Court

The Supreme Court, on May 10, dismissed a plea, inter alia, contending that the Representation of the People Act, 1950 and the Delimitation Act, 2002 are not applicable to the Scheduled Area in absence of the notification issued by the Governor of the State under Clause 5(1) of the Fifth Schedule of the Constitution of India.The Court also rejected the argument that the fifth schedule of the Constitution takes away the right of a non-tribal person to settle down and vote in a scheduled area was also rejected."Under sub clause (e) of Clause (1) of Article 19 of the Constitution of India, every citizen has a right to reside and settle in any part of the territory of India. However, by making a law, reasonable restrictions can be put on the said Fundamental Right as provided in Clause (5) of Article 19. Therefore, we reject the argument that non-Tribals have no right to settle down in a Scheduled Area. The argument that the Fifth Schedule is a law made by the Parliament is misconceived. Even assuming that Fifth Schedule is a law, it does not put any constraints on the exercise of the Fundamental Rights under Article 19(1) of the Constitution of India", the Court observed in Adivasis for Social and Human Rights Action v. Union of India And Ors."As far as the right to vote is concerned, the (Representation of People)1950 Act is applicable to the Scheduled Area and therefore, the appellant cannot contend that only a person belonging to Scheduled Tribe can cast a vote in elections of the constituencies in the Scheduled Area. The right to vote will be governed by Part III of the 1950 Act. Every eligible voter is entitled to be registered in the electoral roll of a constituency, in which he is ordinarily residing. Therefore, any person eligible to vote who is ordinarily residing in the Scheduled Area has a right to vote, even if he is a nonTribal"The present Civil Appeal was filed assailing an order of the Odisha High Court. Adivasis for Social and Human Rights Action filed a writ petition before the Odisha High Court contending that in the Scheduled Area no one other than the members of the Scheduled Tribes have the right to settle down. This was particularly with respect to the district of Sundargarh in Orissa which was declared a Scheduled Area on 31st December, 1977, by the President of India in exercise of power under Clause 6(2) of the Fifth Schedule of the Constitution of India. It was also argued in the writ petition that those who are not members of the Scheduled Tribes, but still residing in the Scheduled Area are unlawful occupants and is disentitled to exercise their right to vote in any constituency in the Scheduled Area. The petition sought a declaration that every constituency in the Scheduled Area is a reserved constituency under Articles 330 and 332 of the Constitution of India. It was also contended that no candidate, other than the candidates belonging to the Scheduled Tribes, should have the right to contest the elections of the Legislative Assembly or the Lok Sabha in the Scheduled Area. Another contention raised in the petition was that the Representation of the People Act, 1950 and the Delimitation Act, 2002 are not applicable to the Scheduled Area in absence of the notification issued by the Governor of the State under Clause 5(1) of the Fifth Schedule. The High Court dismissed the writ petition. A Bench comprising Justice AS Oka and Justice Rajesh Bindal observed that there is ‘absolutely no merit in the appeal’ and the High Court was right in rejecting the writ petition. However, it refrained from imposing cost only because the appellant is a society working for the welfare of the indigenous people. Analysis by the Supreme Court At the threshold, the Court dealt with the issue - whether the Central and the State Acts can apply to a Scheduled Area unless a specific notification making the said Acts applicable to the Scheduled Area is issued by the Governor. On perusal of Clause 5(1) of the Fifth Schedule, which deals with the laws applicable to Scheduled Areas the Court noted that the Governor’s power extend to -directing by a notification that a particular Central or State legislation will not apply to a Scheduled Area in the State, and;directing by a notification that a particular State or Central Act will apply to a Scheduled Area subject to certain modifications. The Court said that since the provision empowers the Governor to notify that certain Central and State laws would not apply to the Scheduled Area, it signifies that initially the said laws are applicable to all Scheduled Areas. Otherwise such a power would not have been conferred on the Governor. Furthermore, the Court noted that the petitioner’s contention that unless there is a specific notification issued by the Governor applying Central or State laws to a Scheduled Area, the said laws will not apply to the Scheduled Area is no longer res integra. It has been decided by a Constitution Bench in...

Non-Tribal Person's Right To Settle Down & Vote In Scheduled Areas Not Taken Away By 5th Schedule Of Constitution : Supreme Court

Sohini Chowdhury

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