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

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 -

1. directing by a notification that a particular Central or State legislation will not apply to a Scheduled Area in the State, and;
2. 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 its 2021 judgment in Chebrolu Leela Prasad Rao & Ors. v. State of Andhra Pradesh & Ors. wherein it had held -

“39.1. …The Governor is not authorised to enact a new Act under the provisions contained in Para 5(1) of Schedule V to the Constitution. Area reserved for the Governor under the provisions of Para 5(1) is prescribed. He cannot act beyond its purview and has to exercise power within the four corners of the provisions.

[...]

40. The Act of Parliament or the appropriate legislature applies to the Scheduled Areas. The Governor has the power to exclude their operation by a notification. In the absence thereof, the Acts of the legislature shall extend to such areas.”

Therefore, the Constitution Bench had opined that the Governor’s power to make law is not available under Clause 5(1) of the Fifth Schedule. They only have the power to not apply a law or apply it with exceptions and modifications. Moreover, it had stated that the power of the Governor in this regard would not supersede the fundamental rights under Part III of the Constitution or any other provisions of the Constitution.

The Apex Court concluded -

1. All the Central and the State laws which are applicable to the entire State of Orissa will continue to apply to the Scheduled Area unless in exercise of powers under Clause 5(1) of the Fifth Schedule, there is a specific notification issued by the Governor making a particular enactment inapplicable, either fully or partially
2. The power of the Governor under Clause 5 of the Fifth Schedule is restricted to directing that a particular law will not apply to the Scheduled Area or it will apply with such modifications as may be specified in the notification issued under Clause 5(1) of the Fifth Schedule or while making Regulations in terms of Clause 5(2) of the Fifth Schedule;
3. The power of the Governor under Clause 5 of the Fifth Schedule does not supersede the Fundamental Rights under Part III of the Constitution of India; and
4. Fundamental Rights conferred by Article 19(1)(e) of the Constitution [all citizens have the right to reside and settle in any part of the territory of India] on the citizens can also be exercised in relation to the Scheduled Area.

In view of Article 19(1)(e), the Court rejected the argument that no one other than the members of the Scheduled Tribes have the right to settle down in Scheduled Areas. It clarified that the Fifth Schedule of the Constitution does not put any restriction on the exercise of rights under Article 19(1).

Moreover, it noted that since the Representation of People Act is applicable to Scheduled Areas, every eligible voter residing in the Scheduled Areas, even those who are not members of the Scheduled Tribes can cast vote in elections.

On perusal of Articles 330 (reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People) and 332 (reservation of seats for Scheduled Caste and Scheduled Tribes in Legislative Assemblies of the States) of the Constitution, the Court noted that all the constituencies in the Scheduled area cannot be reserved for the Scheduled Tribes.

Case details

Adivasis for Social and Human Rights Action v. Union of India And Ors.| 2023 LiveLaw SC 431    | Civil Appeal No. 2202 of 2012| 10th May, 2023| Justice Abhay S. Oka and Justice Rajesh Bindal