ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION versus UNION OF INDIA & ORS. on 10 May 2023

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SUPREME COURT REPORTS

[2023] 5 S.C.R.

AADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION

v.

UNION OF INDIA & ORS.

(Civil Appeal No. 2202 of 2012)

BMAY 10, 2023

[ABHAY S. OKA AND RAJESH BINDAL, JJ.]

Constitution of India, 1950 : 5th Schedule – Power ofGovernor under – Application of Central and the State Acts to aCScheduled Area-District of Sundargarh in the State of Orissa withouta specific notification making the said Acts applicable to theScheduled Area issued by the Governor – Held: All the Centraland the State laws which are applicable to the entire State of Orissawould continue to apply to the Scheduled Area unless, in exerciseof powers under sub-clause (1) of Clause 5 of the Fifth Schedule,Dthere is a specific notification issued by the Governor making aparticular enactment inapplicable, either fully or partially – Powerof the Hon’ble Governor under Clause 5 of the Fifth Schedule isrestricted to directing that a particular law would not apply to theScheduled Area it would apply with such modifications as may beEspecified in the notification issued under sub-clause (1) of Clause5 of the Fifth Schedule or while making Regulations in terms ofsub-clause (2) of Clause 5 of the Fifth Schedule – Power of theGovernor under Clause 5 of the Fifth Schedule does not supersedethe Fundamental Rights – Fundamental Rights conferred by sub-Fclause (e) of Art. 19(1) on the citizens can also be exercised inrelation to the Scheduled Area.

Art. 19(1)(e) – Right to reside – If the non-Tribals have rightto settle down in Scheduled Area – Held: Under sub-clause (e) ofClause (1) of Art. 19, every citizen has a right to reside and settle inGany part of the territory of India – However, by making a law,reasonable restrictions can be put on the said Fundamental Right –Even assuming that Fifth Schedule is a law, it does not put anyconstraints on the exercise of the Fundamental Rights under Art.19(1) – Thus, it cannot be said that the non-tribals have no right tosettle down in a Scheduled Area.H

ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION v.UNION OF INDIA & ORS.

Arts. 330 and 332 – Lok Sabha and the State legislativeconstituencies in a Scheduled Area – Reservation for the SchedulesTribes – Held: Reservation is required to be made in terms of Arts.330 and 332 – These provisions do not provide that all theconstituencies in the Scheduled Areas shall be reserved forScheduled Tribes – Moreover, the 2002 Act is applicable to theScheduled Area – Thus, the prayer to issue writ of mandamus, asregards the reservation for the Scheduled Tribes is rejected –Delimitation Act, 2002.

Representation of People’s Act, 1950: Right to vote – Non-tribal’s right to vote in a Scheduled Area – Held : 1950 Act isapplicable to the Scheduled Area – Right to vote would be governedby Part III of the 1950 Act – Every eligible voter is entitled to beregistered in the electoral roll of a constituency, in which he isordinarily residing – Thus, any person eligible to vote who isordinarily residing in the Scheduled Area has a right to vote, evenif he is a non-Tribal – It cannot be said that only a person belongingto Scheduled Area can cast a vote in election of constituencies inthe scheduled area.

Dismissing the appeal, the Court

Conclusion

Dismissing the appeal, the Court

HELD: 1.1 On a plain reading of sub-clause (1) of Clause 5of the Fifth Schedule, to the Constitution of India the power ofthe Hon’ble Governor under the said sub-clause (1) extends todirecting by a notification that a particular Central or Statelegislation will not apply to a Scheduled Area in the State, and;directing by a notification that a particular State or Central Actwill apply to a Scheduled Area subject to certain modifications.The first part of sub-clause (1) proceeds on the footing that allthe State and Central legislations applicable to a State areapplicable to the Scheduled Areas within the said State. Otherwise,there was no reason to confer a power on the Hon’ble Governorto declare that particular legislation will not apply to a particularScheduled Area. [Para 8][379-D-G]

1.2 The contention raised by the appellant that unless thereis a specific notification issued by the Hon’ble Governor applyingCentral or State laws to a Scheduled Area, the said laws will not AB

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Aapply to the said Scheduled Area, to say the least, is preposterous.[Para 11][381-C-D]

1.3 All the Central and the State laws which are applicableto the entire State of Orissa will continue to apply to the ScheduledArea unless, in exercise of powers under sub-clause (1) of ClauseB5 of the Fifth Schedule, there is a specific notification issued bythe Hon’ble Governor making a particular enactment inapplicable,either fully or partially. The power of the Hon’ble Governor underClause 5 of the Fifth Schedule is restricted to directing that aparticular law will not apply to the Scheduled Area it will applywith such modifications as may be specified in the notificationCissued under subclause (1) of Clause 5 of the Fifth Schedule orwhile making Regulations in terms of sub-clause (2) of Clause 5of the Fifth Schedule. The power of the Hon’ble Governor underClause 5 of the Fifth Schedule does not supersede theFundamental Rights under Part III of the Constitution of India.DTherefore, the Fundamental Rights conferred by sub-clause (e)of Article 19(1) of the Constitution of India on the citizens canalso be exercised in relation to the Scheduled Area. [Para13][385-C-G]

1.4 Under sub-clause (e) of Clause (1) of Article 19 of theEConstitution of India, every citizen has a right to reside and settlein any part of the territory of India. However, by making a law,reasonable restrictions can be put on the said Fundamental Rightas provided in Clause (5) of Article 19. Therefore, the submissionthat the non-Tribals have no right to settle down in a ScheduledArea is rejected. The submission that the Fifth Schedule is a lawFmade by the Parliament is misconceived. Even-assuming that FifthSchedule is a law, it does not put any constraints on the exerciseof the Fundamental Rights under Article 19(1) of the Constitutionof India. [Para 14, 15][385-G-H; 386-A-B]

1.5 As far as the right to vote is concerned, the 1950 Act isGapplicable to the Scheduled Area and therefore, the appellantcannot contend that only a person belonging to Scheduled Tribecan cast a vote in elections of the constituencies in the ScheduledArea. The right to vote will be governed by Part III of the 1950Act. Every eligible voter is entitled to be registered in theH

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electoral roll of a constituency, in which he is ordinarily residing.Therefore, any person eligible to vote who is ordinarily residingin the Scheduled Area has a right to vote, even if he is a non-Tribal. [Para 16][386-B-D]

1.6 As regards providing reservation for all the Lok Sabhaand the State Legislative constituencies in a Scheduled Area, theappellant cannot contend that all the constituencies in a Scheduledarea should be reserved for the Scheduled Tribes. Reservationis required to be made in terms of Articles 330 and 332 of theConstitution of India. These provisions do not provide that allthe constituencies in the Scheduled Areas shall be reserved forScheduled Tribes. Moreover, the 2002 Act is applicable to theScheduled Area. Therefore, even the said prayer to issue a writof mandamus, as regards the reservation for the ScheduledTribes, is rejected. [Para 17][386-D-E]

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1.7 The Land Acquisition Act, 1894 was made applicable tothe whole of India except the State of Jammu and Kashmir. Inthe absence of the exercise of power by the Hon’ble Governorunder sub-clause (1) of Clause 5 of the Fifth Schedule, the saidlaw was applicable to the Scheduled Area. [Para 18][386-E-F]

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1.8 There is absolutely no merit in the appeal, and the HighCourt was right when it dismissed the writ petition filed by theappellant. [Para 19][386-G]

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Chebrolu Leela Prasad Rao & Ors. v. State of AndhraPradesh & Ors (2021) 11 SCC 401 – followed.

Raja Bahadur Kamakshya Narain Singh of Ramgarhv. Commissioner of Income Tax Bihar (1947) FederalCourt Reports 130; Chatturam v. Commissioner ofIncome Tax AIR 1947 FC 32 – referred.

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Case Law Reference

(2021) 11 SCC 401followedPara 11G

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2202of 2012.

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AFrom the Judgment and Order dated 09.07.2010 of the High Courtof Orissa at Cuttack in WPC No. 8840 of 2009.

A. P. Mohanty, D. K. Singh, Ram Narayan Mohanty, Dinesh S.Badiar, Samindra Kumar Tripathi, Advs. for the Appellant.

Sibo Sankar Mishra, Umakant Mishra, Ms. Apoorva Sharma, SunilBMung, Mrs. Anil Katiyar, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua,Ms. Aparna Singh, Ms. Sakshi Upadhyaya, Advs. for the Respondents.

The Judgment of the Court was delivered by ABHAY S. OKA, J.CFACTUAL ASPECTS

1. In exercise of powers under sub-clause (2) of Clause 6 of theFifth Schedule to the Constitution of India, on 31[st] December 1977, theHon’ble President of India declared the entire District of Sundargarh inthe State of Orissa as a Scheduled Area (for short, ‘the Scheduled Area’).DThe appellant, a society registered under the Societies Registration Act,1860, invoked the writ jurisdiction of the High Court under Article 226 ofthe Constitution of India. The first contention raised in the writ petitionwas that in the Scheduled Area, except for the members of the ScheduledTribes, no one has the right to settle down. A contention was raised inthe writ petition that every person, who does not belong to ScheduledETribe and residing in the Scheduled Area, is an unlawful occupant and,therefore, is disentitled to exercise his right to vote in any constituency inthe Scheduled Area. Further contention raised was that every constituencyin the Scheduled Area should be declared as a reserved constituencyunder Articles 330 and 332 of the Constitution of India. It was alsoFcontended that no candidate, other than the candidates belonging to theScheduled Tribes, should have the right to contest the elections of theLegislative Assembly or the Lok Sabha in the Scheduled Area.

2. Another contention raised in the petition is that in view of sub-clause (1) of Clause 5 of the Fifth Schedule unless there is a specificGnotification issued by the Hon’ble Governor of the State applying anyparticular Central or State law to a Scheduled Area, none of the provisionsof the Central or State laws are applicable to that particular ScheduledArea. Therefore, it was urged that the Representation of the PeopleAct, 1950 (for short, ‘the 1950 Act’) and the Delimitation Act, 2002 (forshort, ‘the 2002 Act’) are not applicable to the Scheduled Area in theH

absence of any such notification. A Division Bench of the High Court ofOrissa, by the impugned judgment, dismissed the writ petition. Beingaggrieved by the decision of the High Court of Orissa, the present appealhas been preferred pursuant to the grant of leave by this Court videorder dated 14[th] February 2012.

SUBMISSIONS

3. The first contention raised by the learned counsel appearingfor the appellant is that none of the laws enacted by the Central or theState Legislature are applicable to a Scheduled Area unless there is aspecific notification issued under sub-clause (1) of Clause 5 of the FifthSchedule by the Hon’ble Governor declaring that any particular law willbe applicable to the Scheduled Area. He submitted that Article 244(1)provides that the provisions of the Fifth Schedule shall apply to theadministration and control of the Scheduled Areas. Therefore, what isprovided in Fifth Schedule shall be considered as a law made by theConstitution of India. His submission is that no law made by the Centralor the State Legislature can be applied to a Scheduled Area in the absenceof a specific notification issued by the Hon’ble Governor, and therefore,such law shall be treated as null and void. He submitted that only thelaws made under the Constitution of India in exercise of power underthe Fifth Schedule will apply to the Scheduled Areas. He submitted thatany law made by the State or the Central Legislature in its application tothe Scheduled Area will be in derogation of the provisions of Article 244of the Constitution of India and therefore, such laws are void.

4. He submitted that the Hon’ble Governor of the State must firstdecide which Acts of the Parliament or the State Legislature shouldapply to Scheduled Areas of the State. After satisfying himself that aparticular enactment needs to be applied to a particular Scheduled Area,he must issue a notification making applicable the law to the ScheduledArea. He submitted that unless a specific notification is issued by theHon’ble Governor clearly incorporating the title and other particulars ofevery Act of the Parliament and the State Legislature, which will beapplied to the Scheduled Area, no Act of Parliament or State Legislatureis applicable to a Scheduled Area.

5. Inviting our attention to the Fundamental Rights guaranteedunder sub-clause (e) of Clause (1) of Article 19 of the Constitution ofIndia, he submitted that what prevails in the Scheduled Areas is the lawmade in accordance with Clause 5 of the Fifth Schedule.

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A6. The learned counsel relied upon the decisions of the FederalCourt in the case of Raja Bahadur Kamakshya Narain Singh ofRamgarh v. Commissioner of Income Tax Bihar[1]and in the case ofChatturam v. Commissioner of Income Tax[2]in support of theinterpretation made by him of sub-clause (1) of Clause 5 of the FifthSchedule. In the statement of case, the appellant has submitted that asBthe Land Acquisition Act, 1894 is not notified by the Hon’ble Governor,the said law is not applicable to the Scheduled Area. We have also heardthe learned counsel appearing for the respondents.

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OUR VIEW

C7. The first question to be answered by this Court is whether theCentral and the State Acts can apply to a Scheduled Area unless aspecific notification making the said Acts applicable to the ScheduledArea is issued by the Hon’ble Governor. Clause 5 of the Fifth Schedulereads thus:

D“5. Law applicable to Scheduled Areas. — (1) Notwithstandinganything in this Constitution, the Governor may by publicnotification direct that any particular Act of Parliament orof the Legislature of the State shall not apply to a ScheduledArea or any part thereof in the State or shall apply to aScheduled Area or any part thereof in the State subject toEsuch exceptions and modifications as he may specify in thenotification and any direction given under this sub-paragraph may be given so as to have retrospective effect.

(2) The Governor may make regulations for the peace and goodgovernment of any area in a State which is for the time being aFScheduled Area.

In particular and without prejudice to the generality of the foregoingpower, such regulations may—

(a) prohibit or restrict the transfer of land by or among membersof the Scheduled Tribes in such area;G(b) regulate the allotment of land to members of the ScheduledTribes in such area; H

1 (1947) Federal Court Reports 130

2 AIR 1947 FC 32

ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION v.UNION OF INDIA & ORS. [ABHAY S. OKA, J.]

(c) regulate the carrying on of business as money-lender by personswho lend money to members of the Scheduled Tribes in sucharea.

(3) In making any such regulation as is referred to in sub-paragraph(2) of this paragraph, the Governor may repeal or amend any Actof Parliament or of the Legislature of the State or any existinglaw which is for the time being applicable to the area in question.

(4) All regulations made under this paragraph shall be submittedforthwith to the President and, until assented to by him, shall haveno effect.

(5) No regulation shall be made under this paragraph unless theGovernor making the regulation has, in the case where there is aTribes Advisory Council for the State, consulted such Council.”

8. On a plain reading of sub-clause (1) of Clause 5 of the FifthSchedule, the power of the Hon’ble Governor under the said sub-clause(1) extends to:

i.directing by a notification that a particular Central or Statelegislation will not apply to a Scheduled Area in the State,and;

ii.directing by a notification that a particular State or CentralAct will apply to a Scheduled Area subject to certainmodifications.

The first part of sub-clause (1) proceeds on the footing that all theState and Central legislations applicable to a State are applicable to theScheduled Areas within the said State. Otherwise, there was no reasonto confer a power on the Hon’ble Governor to declare that particularlegislation will not apply to a particular Scheduled Area.

9. For interpreting Clause 5, the learned counsel appearing for theappellant has relied upon the decisions of the Federal Court in the casesof Raja Bahadur[1]and Chhaturam[2]. Both the decisions deal with Section92 of the Government of India Act, 1935, which reads thus:

“Administration of Excluded Areas and Partially ExcludedAreas:

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A92. (1) The executive authority of a Province extends to excludedand partially excluded areas therein, but, notwithstandinganything in this Act, no Act of the Federal Legislature or ofthe Provincial Legislature, shall apply to an excluded areaor a partially excluded area, unless the Governor by publicnotification so directs, and the Governor in giving such aBdirection with respect to any Act may direct that the Actshall in its application to the area, or to any specified partthereof, have effect subject to such exceptions ormodifications as he thinks fit.

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(2) The Governor may make regulations for the peace and goodGovernment of any area in a Province which is for the time beingan excluded area, or a partially excluded area, and any regulationsso made may repeal or amend any Act of the Federal Legislatureor of the Provincial Legislature, or any existing Indian law, whichis for the time being applicable to the area in question.

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Regulations made under this sub-section shall be submittedforthwith to the Governor-General and until assented to by him inhis discretion shall have no effect, and the provisions of this Partof this Act with respect to the power of His Majesty to disallowActs shall apply in relation to any such regulations assented to byEthe Governor-General as they apply in relation to Acts of aProvincial Legislature assented to by him.

(3) The Governor shall, as respects any area in a Province whichis for the time being, an excluded area, exercise his functions inhis discretion.”

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10. By virtue of Article 395, the Government of India Act, 1935has been repealed. Sub-Section (1) of Section 92 of the Government ofIndia Act, 1935 and sub-clause (1) of Clause 5 of the Fifth Schedule arecompletely different. Sub-Section (1) of Section 92 provides that no ActGof the Federal Legislature or a Provincial Legislature shall apply to anExcluded Area unless the Governor by a public notification so directs.However, sub-Clause (1) of Clause 5 of the Fifth Schedule confers apower on the Hon’ble Governor to issue a notification for directing thata particular enactment, either State or Central, will not apply to a ScheduledArea. He also has the power to direct that a particular enactment willH

apply to a Scheduled Area with modifications as may be specified byhim in the notification. Sub-clause (1) of Clause 5 of the Fifth Scheduleproceeds on the basis that all the State and the Central laws which areotherwise applicable to a State apply to Scheduled Areas in the State.Whereas, sub-Section (1) of Section 92 of the Government of India Act,1935 provides that no law of Federal or Provincial Legislature will applyto an Excluded Area unless a notification is issued by the Hon’bleGovernor issuing a specific direction to that effect. Thus, the relianceplaced on sub-Section (1) of Section 92 of the Government of India Act,1935 is not at all relevant.

11. The contention raised by the appellant that unless there is aspecific notification issued by the Hon’ble Governor applying Central orState laws to a Scheduled Area, the said laws will not apply to the saidScheduled Area, to say the least, is preposterous. In fact, the issue is nolonger res integra. There is a binding decision of the Constitution Benchof this Court in the case of Chebrolu Leela Prasad Rao & Ors. v.State of Andhra Pradesh & Ors[3]. In paragraph 2 of the said decision,the Constitution Bench formulated the questions which requiredconsideration. Paragraph 2 of the said decision reads thus:

“2. Several questions have been referred for consideration in theorder dated 11-1-2016 [Chebrolu Leela Prasad Rao v. State ofA.P., (2021) 11 SCC 526]. We have renumbered Questions 1(a),(b), (c) and (d) based on interconnection. The questions are asfollows: (Chebrolu Leela Prasad Rao case [Chebrolu LeelaPrasad Rao v. State of A.P., (2021) 11 SCC 526], SCC p. 527,para 1)

(1) What is the scope of Para 5(1), Schedule V to theConstitution of India?

(a) Does the provision empower the Governor to makea new law?

(b) Does the power extend to subordinate legislation?

(c) Can the exercise of the power conferred thereinoverride fundamental rights guaranteed under Part III?

(d) Does the exercise of such power override any parallelexercise of power by the President under Article 371-D?

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(2) Whether 100% reservation is permissible under theConstitution?

(3) Whether the notification merely contemplates a classificationunder Article 16(1) and not reservation under Article 16(4)?

(4) Whether the conditions of eligibility (i.e. origin and cut-offdate) to avail the benefit of reservation in the notification arereasonable?”

In paragraph 39.1, the Constitution Bench held thus:

“39. .. .. .. .. .. .. .. .. .. .. .. .. .. ..

39.1. Para 5(1) of Schedule V does not confer upon Governorpower to enact a law but to direct that a particular Act ofParliament or the State Legislature shall not apply to a ScheduledArea or any part thereof or shall apply with exceptions andmodifications, as may be specified in the notification. TheGovernor is not authorised to enact a new Act under theprovisions contained in Para 5(1) of Schedule V to theConstitution. Area reserved for the Governor under theprovisions of Para 5(1) is prescribed. He cannot act beyondits purview and has to exercise power within the fourcorners of the provisions.

”39.2. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..

In paragraph 40, the Constitution Bench proceeded to hold thus:

“40. The Act of Parliament or the appropriate legislatureapplies to the Scheduled Areas. The Governor has thepower to exclude their operation by a notification. In theabsence thereof, the Acts of the legislature shall extend tosuch areas. In Jatindra v. Province of Bihar [Jatindra v.Province of Bihar, 1949 SCC OnLine FC 23 : ILR (1949) 28 Pat703 : 1949 FLJ 225] , it was held that the power of the Governorunder Para 5 is a legislative power and the Governor is empoweredto change or modify the provisions of the Act or the section as hedeems fit by way of issuing a notification. The power under Para5(1) is limited to the application of the Governor’s decision to ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION v.UNION OF INDIA & ORS. [ABHAY S. OKA, J.]

apply an Act or making modification or creating exceptions.Though the power is legislative to some extent, that is confined toapplicability, modification, or creating exceptions concerning theAct of Parliament or the State. While Para 5(2) confers the powerof independent legislation, the Governor has plenary power offraming regulations for the peace and good governance of aScheduled Area. He is the repository of faith to decide as to thenecessity. The Governor is empowered by Para 5(3) to repeal oramend any Act of Parliament or State Legislature, following theprocedure prescribed therein, in exercise of making regulationsas provided under Para 5(2) of Schedule V. The aspect of powerwas considered in Ram Kirpal Bhagat v. State of Bihar [RamKirpal Bhagat v. State of Bihar, (1969) 3 SCC 471 : 1970 SCC(Cri) 154] thus : (SCC pp. 478-80, paras 21-23)

“21. The second question which falls for consideration is whetherthe Bihar Regulation I of 1951 is in excess of the Governor’spowers. The contentions were: first, that the Regulation I of 1951could not at all have been made; secondly, that Regulations dealwith the subject-matter and did not mean power to apply law andthirdly, the power to extend a law passed by another legislaturewas said to be not a legislative function, but was a conditionallegislature. The legislation, in the present case, is in relation towhat is described as Scheduled Areas. The Scheduled Areas aredealt with by Article 244 of the Constitution and the Fifth Scheduleto the Constitution. Prior to the Constitution, the excluded areaswere dealt with by Sections 91 and 92 of the Government of IndiaAct, 1935. The excluded and the partially excluded areas wereareas so declared by Order in Council under Section 91 and underSection 92. No act of the Federal Legislature or of theProvincial Legislature was to apply to an excluded or apartially excluded area unless the Governor by publicnotification so directed. Sub-section (2) of Section 92 ofthe Government of India Act, 1935 conferred power on theGovernor to make regulations for the peace and goodgovernment of any area in a Province which was an excludedor a partially excluded area and any regulations so mademight repeal or amend any Act of the Federal Legislatureor the Provincial Legislature or any existing Indian lawwhich was for the time being applicable to the area in AB

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Aquestion. The extent of the legislative power of the Governorunder Section 92 of the Government of India Act, 1935 in makingregulations for the peace and good government of any areaconferred on the Governor in the words of Lord Halsbury “anutmost discretion of enactment for the attainment of the objectspointed to.” (See Riel v. R. [Riel v. R., (1885) LR 10 AC 675B(PC)], AC p. 678.) In that case the words which fell forconsideration by the Judicial Committee were “the power ofParliament of Canada to make provisions for theadministration, peace, order and good government of anyterritory not for the time being included in any province”. ItCwas contended that if any legislation differed from the provisionswhich in England had been made for the administration, peace,order and good government then the same could not be sustainedas valid. That contention was not accepted. These words wereheld to embrace the widest power to legislate for the peaceand good government for the area in question.””D

Again, in paragraph 52, the Constitution Bench answered Question(1)(b) as under:

“52. We are of the opinion that the Governor’s power to makeEnew law is not available in view of the clear language ofPara 5(1), Fifth Schedule does not recognise or confer suchpower, but only power is not to apply the law or to apply itwith exceptions or modifications. Thus, the notification is ultravires to Para 5(1) of Schedule V to the Constitution.”

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12. In paragraph 80, the Constitution Bench answered Question(1)(c). Paragraph 80 reads thus:

“80. The power is conferred on the Governor to deal withGthe Scheduled Areas. It is not meant to prevail over theConstitution. The power of the Governor is pari passu with thelegislative power of Parliament and the State. The legislative powercan be exercised by Parliament or the State subject to the provisionsof Part III of the Constitution. In our considered opinion, thepower of the Governor does not supersede the fundamental H

ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION v.UNION OF INDIA & ORS. [ABHAY S. OKA, J.]

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rights under Part III of the Constitution. It has to beexercised subject to Part III and other provisions of theConstitution. When Para 5 of the Fifth Schedule confers poweron the Governor, it is not meant to be conferral of arbitrary power.The Constitution can never aim to confer any arbitrary power onthe constitutional authorities. They are to be exercised in a rationalmanner keeping in view the objectives of the Constitution. Thepowers are not in derogation but the furtherance of theconstitutional aims and objectives.”

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13. Therefore, to conclude;

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(i) All the Central and the State laws which are applicable tothe entire State of Orissa will continue to apply to theScheduled Area unless, in exercise of powers under sub-clause (1) of Clause 5 of the Fifth Schedule, there is aspecific notification issued by the Hon’ble Governor makinga particular enactment inapplicable, either fully or partially; D

(ii) The power of the Hon’ble Governor under Clause 5 of theFifth Schedule is restricted to directing that a particular lawwill not apply to the Scheduled Area or it will apply withsuch modifications as may be specified in the notificationissued under sub-clause (1) of Clause 5 of the FifthSchedule or while making Regulations in terms of sub-clause(2) of Clause 5 of the Fifth Schedule; E

(iii) The power of the Hon’ble Governor under Clause 5 of theFifth Schedule does not supersede the Fundamental RightsFunder Part III of the Constitution of India; and

(iv) Therefore, the Fundamental Rights conferred by sub-clause(e) of Article 19(1) of the Constitution of India on the citizenscan also be exercised in relation to the Scheduled Area.

14. Under sub-clause (e) of Clause (1) of Article 19 of theConstitution of India, every citizen has a right to reside and settle in anypart of the territory of India. However, by making a law, reasonablerestrictions can be put on the said Fundamental Right as provided inClause (5) of Article 19. Therefore, we reject the argument that non-Tribals have no right to settle down in a Scheduled Area.

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A15. The argument that the Fifth Schedule is a law made by theParliament is misconceived. Even assuming that Fifth Schedule is a law,it does not put any constraints on the exercise of the Fundamental Rightsunder Article 19(1) of the Constitution of India.

16. Now, we come to the second question whether a non-TribalBhas the right to vote in a Scheduled Area. As far as the right to vote isconcerned, the 1950 Act is applicable to the Scheduled Area and therefore,the appellant cannot contend that only a person belonging to ScheduledTribe can cast a vote in elections of the constituencies in the ScheduledArea. 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 aCconstituency, in which he is ordinarily residing. Therefore, any personeligible to vote who is ordinarily residing in the Scheduled Area has aright to vote, even if he is a non-Tribal.

17. As regards providing reservation for all the Lok Sabha andthe State Legislative constituencies in a Scheduled Area, the appellantDcannot contend that all the constituencies in a Scheduled area should bereserved for the Scheduled Tribes. Reservation is required to be madein terms of Articles 330 and 332 of the Constitution of India. Theseprovisions do not provide that all the constituencies in the ScheduledAreas shall be reserved for Scheduled Tribes. Moreover, the 2002 Actis applicable to the Scheduled Area. Therefore, even the said prayer toEissue a writ of mandamus, as regards the reservation for the ScheduledTribes, deserves to be rejected.

18. The Land Acquisition Act, 1894 was made applicable to thewhole of India except the State of Jammu and Kashmir. In the absenceof the exercise of power by the Hon’ble Governor under sub-clause (1)Fof Clause 5 of the Fifth Schedule, the said law was applicable to theScheduled Area.

19. We are, therefore, of the view that there is absolutely no meritin the appeal, and the High Court was right when it dismissed the writpetition filed by the appellant. Only in view of the claim that the appellantGis working for the welfare of the tribals that we refrain from saddling theappellant with costs.

20. Hence, the appeal is dismissed with no order as to costs.

Nidhi JainH(Assisted by : Tamana, LCRA)