On May 10, the Supreme Court dismissed a plea that challenged the applicability of the Representation of the People Act, 1950 and the Delimitation Act, 2002 to the Scheduled Areas in the absence of a notification issued by the Governor of the State under Clause 5(1) of the 5th Schedule of the Constitution of India. The petitioner argued that without such a notification, the acts are not enforceable in the Scheduled Areas. However, the apex court rejected this argument. Additionally, the Court dismissed the argument that the Fifth Schedule of the Constitution takes away the right of non-tribal persons to settle down and vote in a scheduled area.
This decision is significant as it reinforces the constitutional provisions related to the Scheduled Areas and clarifies the rights of non-tribal persons to reside and vote in such areas. It also underscores the importance of the Fifth Schedule of the Constitution in protecting the rights of tribal communities living in the Scheduled Areas. The decision is likely to have far-reaching implications on the legal landscape of India, particularly with respect to tribal rights and representation in the country.
On May 10, the Supreme Court dismissed a petition that argued the Representation of the People Act, 1950, and the Delimitation Act, 2002 were not applicable to Scheduled Areas in the absence of a notification issued by the Governor of the State under Clause 5(1) of the Fifth Schedule of the Indian Constitution. The Court also dismissed the claim that the Fifth Schedule of the Constitution eliminates the right of non-tribal individuals to settle down and vote in a scheduled area.
Recent judgment by the Supreme Court of India in the case of Adivasis for Social and Human Rights Action v. Union of India and Ors. The court rejected the argument that non-tribal people do not have the right to settle down and vote in Scheduled Areas, which are areas in India where certain protections and provisions are provided for the welfare of Scheduled Tribes. The court explained that every citizen of India has the fundamental right to reside and settle in any part of the country under Article 19 of the Constitution of India.
While reasonable restrictions can be imposed on this right under certain circumstances, the Fifth Schedule of the Constitution, which applies to Scheduled Areas, does not place any such restrictions on the exercise of this right. Therefore, the court concluded that non-tribal people do have the right to settle down in Scheduled Areas and the argument to the contrary was rejected.
The Supreme Court recently dismissed a plea challenging the applicability of the Representation of People Act, 1950 to the Scheduled Area in the absence of a notification by the Governor of the State under Clause 5(1) of the Fifth Schedule of the Constitution of India. The plea also argued that non-Tribals do not have the right to settle down and vote in a Scheduled Area.
However, the Court rejected both arguments. It clarified that under sub clause (e) of Clause (1) of Article 19 of the Constitution, every citizen has the right to reside and settle in any part of India, subject to reasonable restrictions imposed by law under Clause (5) of Article 19. Therefore, non-Tribals do have the right to settle down in a Scheduled Area.
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The Court also stated that the Representation of People Act, 1950 applies to the Scheduled Area and any eligible voter, regardless of their tribal status, has the right to vote in the elections of the constituencies in the Scheduled Area. The right to vote is governed by Part III of the Act, which allows every eligible voter to be registered in the electoral roll of a constituency in which they are ordinarily residing. Therefore, any person who is eligible to vote and is ordinarily residing in a Scheduled Area, even if they are a non-Tribal, has the right to vote.
The Odisha High Court was challenged in a Civil Appeal filed by the Adivasis for Social and Human Rights Action. The writ petition was filed by the organization, where they argued that only members of the Scheduled Tribes have the right to settle down in the Scheduled Area. This issue was specifically related to the district of Sundargarh in Orissa, which was declared a Scheduled Area on December 31, 1977, by the President of India in accordance with Clause 6(2) of the Fifth Schedule of the Indian Constitution.
The petition contended that only members of the Scheduled Tribes have the right to settle down in the Scheduled Area, particularly in the district of Sundargarh in Orissa. The petition further argued that non-members of the Scheduled Tribes who reside in the Scheduled Area are unlawful occupants and are disentitled to exercise their right to vote in any constituency in the Scheduled Area.
The petition also contended that no candidate other than the candidates belonging to the Scheduled Tribes should have the right to contest elections of the Legislative Assembly or the Lok Sabha in the Scheduled Area. The writ petition further raised the issue of the applicability of the Representation of the People Act, 1950, and the Delimitation Act, 2002, in the Scheduled Area in the absence of a notification issued by the Governor of the State under Clause 5(1) of the Fifth Schedule.
However, the Odisha High Court dismissed the writ petition. The appellant then filed a Civil Appeal in the Supreme Court of India, which was also dismissed. The Supreme Court held that non-tribals have the right to settle down in a Scheduled Area under Article 19 of the Constitution of India, subject to reasonable restrictions.
The Court also held that every eligible voter residing in the Scheduled Area, whether tribal or non-tribal, has the right to vote in the elections of the constituencies in the Scheduled Area, governed by the Representation of the People Act, 1950. The Court also rejected the contention that the Fifth Schedule takes away the right of non-tribals to settle down and vote in a Scheduled Area.
The Bench, consisting of Justice AS Oka and Justice Rajesh Bindal, stated that the appeal had “absolutely no merit” and that the High Court’s decision to dismiss the writ petition was correct. Nevertheless, the bench decided not to impose any costs on the appellant, which is a society working for the betterment of the indigenous population.
Examination by the Supreme Court
The Supreme Court first addressed whether Central and State Acts can apply to a Scheduled Area without a specific notification from the Governor. The Court examined Clause 5(1) of the Fifth Schedule, which outlines the laws applicable to Scheduled Areas. The Court noted that the Governor has the power to issue a notification stating that certain Central and State laws would not apply to the Scheduled Area. However, the Court observed that this power is only an exception to the general rule that these laws are applicable to all Scheduled Areas.
The Court explained that if the laws were not initially applicable to Scheduled Areas, there would be no need to confer such power on the Governor. Therefore, the Court concluded that the Central and State Acts are applicable to Scheduled Areas, and a notification from the Governor is only required to exempt certain laws from application in these areas.
The Supreme Court observed that the petitioner’s argument that Central and State laws will not apply to a Scheduled Area unless a specific notification is issued by the Governor, is no longer valid. The Court cited the 2021 judgment of a Constitution Bench in Chebrolu Leela Prasad Rao & Ors. v. State of Andhra Pradesh & Ors., where it was decided that such a notification is not a mandatory requirement for the application of Central and State laws to Scheduled Areas. Therefore, the Court rejected the petitioner’s argument and stated that Central and State laws are applicable to Scheduled Areas by default, unless specifically exempted by the Governor through a notification.
In the case of Chebrolu Leela Prasad Rao & Ors. v. State of Andhra Pradesh & Ors., a Constitution Bench made a decision in 2021 regarding the powers of the Governor under Clause 5(1) of the Fifth Schedule. The Bench stated that the Governor does not have the authority to create new laws under this provision, and must work within its prescribed limits. The Governor can only choose to exclude the operation of an Act of Parliament or the appropriate legislature by issuing a notification.
In the absence of such a notification, the Acts of the legislature will extend to the Scheduled Areas. The Constitution Bench further clarified that the Governor’s power in this regard cannot override the fundamental rights under Part III of the Constitution or any other provisions of the Constitution. Therefore, the contention of the petitioner that a specific notification is required for Central or State laws to apply to the Scheduled Areas has no merit, as the Governor’s power is limited to choosing to exclude the application of such laws or apply them with exceptions and modifications.
Conclusion of Apex Court
Unless a specific notification is issued by the Governor under Clause 5(1) of the Fifth Schedule, all Central and State laws that apply to the entire state of Orissa will also apply to the Scheduled Area. The Governor has the power to make a particular enactment either fully or partially inapplicable through such notification.
The authority of the Governor under Clause 5 of the Fifth Schedule is limited to issuing directions that a specific law should not be applied to the Scheduled Area, or it can be applied with alterations as mentioned in the notification given under Clause 5(1) of the Fifth Schedule, or while making regulations as per the terms of Clause 5(2) of the Fifth Schedule.