Sanjeev Sirohi, Advocate
Published on: 16 May 2023 at 11:58 IST
In a major development, the Apex Court as recently as on May 10, 2023 in a most learned, laudable, landmark and latest judgment titled Adivasis for Social and Human Rights Action v Union of India and Ors in Civil Appeal No. 2202 of 2012 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.
It has to be taken note that 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. This is what exactly constitutes the essence of this notable judgment.
FACTUAL ASPECTS
At the very outset, this remarkable, robust, rational and recent judgment authored by Hon’ble Mr Justice Abhay S Oka for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Rajesh Bindal sets the ball in motion by first and foremost putting forth in para 1 that, “In exercise of powers under sub-clause (2) of Clause 6 of the Fifth Schedule to the Constitution of India, on 31st December 1977, the Hon’ble President of India declared the entire District of Sundargarh in the State of Orissa as a Scheduled Area (for short, ‘the Scheduled Area’),“.
“The appellant, a society registered under the Societies Registration Act, 1860, invoked the writ jurisdiction of the High Court under Article 226 of the Constitution of India. The first contention raised in the writ petition was that in the Scheduled Area, except for the members of the Scheduled Tribes, no one has the right to settle down,”.
“A contention was raised in the writ petition that every person, who does not belong to Scheduled Tribe and residing in the Scheduled Area, is an unlawful occupant and, therefore, is disentitled to exercise his right to vote in any constituency in the Scheduled Area. Further contention raised was that every constituency in the Scheduled Area should be declared as 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.”
As we see, the Bench discloses in para 2 that, “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 specific notification issued by the Hon’ble Governor of the State applying any particular Central or State law to a Scheduled Area, none of the provisions of the Central or State laws are applicable to that particular Scheduled Area,”.
“Therefore, it was urged that the Representation of the People Act, 1950 (for short, ‘the 1950 Act’) and the Delimitation Act, 2002 (for short, ‘the 2002 Act’) are not applicable to the Scheduled Area in the absence of any such notification. A Division Bench of the High Court of Orissa, by the impugned judgment, dismissed the writ petition. Being aggrieved by the decision of the High Court of Orissa, the present appeal has been preferred pursuant to the grant of leave by this Court vide order dated 14th February 2012.”
Be it noted, the Bench notes in para 8 that, “On a plain reading of sub-clause (1) of Clause 5 of the Fifth Schedule, 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 State legislation will not apply to a Scheduled Area in the State, and;
ii. directing by a notification that a particular State or Central Act will apply to a Scheduled Area subject to certain modifications.
The first part of sub-clause (1) proceeds on the footing that all the States and Central legislations applicable to a State are applicable to the Scheduled Areas within the said State. Otherwise, there was no reason to confer a power on the Hon’ble Governor to declare that particular legislation will not apply to a particular Scheduled Area.”
Most significantly, the Bench minces absolutely no words to hold in para 13 what constitutes the cornerstone of this notable judgment that, “Therefore, to conclude:
(i) 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 sub-clause (1) of Clause 5 of the Fifth Schedule, there is a specific notification issued by the Hon’ble Governor making a particular enactment inapplicable, either fully or partially;
(ii) The power of the Hon’ble 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 sub-clause (1) of Clause 5 of the Fifth Schedule or while making Regulations in terms of sub-clause (2) of Clause 5 of the Fifth Schedule;
(iii) The power of the Hon’ble Governor under Clause 5 of the Fifth Schedule does not supersede the Fundamental Rights under 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 citizens can also be exercised in relation to the Scheduled Area.”
Quite reasonably, the Bench directs in para 14 that, “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.”
More to the point, the Bench also lays down in no uncertain terms in para 15 postulating that, “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.”
Further, the Bench then clearly states in para 16 that, “Now, we come to the second question whether a non-Tribal has the right to vote in a Scheduled Area. As far as the right to vote is concerned, the 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 non-Tribal.”
Quite forthrightly, the Bench propounds in para 17 holding that, “As regards providing reservation for all the Lok Sabha and the State Legislative constituencies in a Scheduled Area, the appellant cannot contend that all the constituencies in a Scheduled Area should be reserved for the Scheduled Tribes. Reservation is required to be made in terms of Articles 330 and 332 of the Constitution of India,”.
“These provisions do not provide that all the constituencies in the Scheduled Areas shall be reserved for Scheduled Tribes. Moreover, the 2002 Act is applicable to the Scheduled Area. Therefore, even the said prayer to issue a writ of mandamus, as regards the reservation for the Scheduled Tribes, deserves to be rejected.”
For sake of clarity, the Bench then clarifies in para 18 pointing out that, “The Land Acquisition Act, 1894 was made applicable to the whole of India except the State of Jammu and Kashmir. In the absence of the exercise of power by the Hon’ble Governor under sub-clause (1) of Clause 5 of the Fifth Schedule, the said law was applicable to the Scheduled Area.”
Most forthrightly, the Bench then observes in para 19 that, “We are, therefore, of the view that there is absolutely no merit in the appeal, and the High Court was right when it dismissed the writ petition filed by the appellant. Only in view of the claim that the appellant is working for the welfare of the tribals that we refrain from saddling the appellant with costs.”
In sum, we thus see that while taking a holistic view, the Apex Court has definitely made it indubitably clear that non-tribal person’s have a right to settle down and vote in the Scheduled Areas which is not taken away by the Fifth Schedule of the Constitution. So it was certainly but natural that the writ petition filed by the appellant was very rightly dismissed.
