Full Text
CIVIL APPEAL NO. 2202 OF 2012
Adivasis for Social and
Human Rights Action …Appellant
JUDGMENT
1. In exercise of powers under subclause (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 Civil Appeal No.2202 of 2012 2023 INSC 512 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.
2. Another contention raised in the petition is that in view of subclause (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.
SUBMISSIONS
3. The first contention raised by the learned counsel appearing for the appellant is that none of the laws enacted by the Central or the State Legislature are applicable to a Scheduled Area unless there is a specific notification issued under subclause (1) of Clause 5 of the Fifth Schedule by the Hon’ble Governor declaring that any particular law will be applicable to the Scheduled Area. He submitted that Article 244(1) provides that the provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas. Therefore, what is provided in Fifth Schedule shall be considered as a law made by the Constitution of India. His submission is that no law made by the Central or the State Legislature can be applied to a Scheduled Area in the absence of a specific notification issued by the Hon’ble Governor, and therefore, such law shall be treated as null and void. He submitted that only the laws made under the Constitution of India in exercise of power under the Fifth Schedule will apply to the Scheduled Areas. He submitted that any law made by the State or the Central Legislature in its application to the Scheduled Area will be in derogation of the provisions of Article 244 of the Constitution of India and therefore, such laws are void.
4. He submitted that the Hon’ble Governor of the State must first decide which Acts of the Parliament or the State Legislature should apply to Scheduled Areas of the State. After satisfying himself that a particular enactment needs to be applied to a particular Scheduled Area, he must issue a notification making applicable the law to the Scheduled Area. He submitted that unless a specific notification is issued by the Hon’ble Governor clearly incorporating the title and other particulars of every Act of the Parliament and the State Legislature, which will be applied to the Scheduled Area, no Act of Parliament or State Legislature is applicable to a Scheduled Area.
5. Inviting our attention to the Fundamental Rights guaranteed under subclause (e) of Clause (1) of Article 19 of the Constitution of India, he submitted that what prevails in the Scheduled Areas is the law made in accordance with Clause 5 of the Fifth Schedule.
6. The learned counsel relied upon the decisions of the Federal Court in the case of Raja Bahadur Kamakshya Narain Singh of Ramgarh v. Commissioner of Income Tax Bihar[1] and in the case of Chatturam v. Commissioner of Income Tax[2] in support of the interpretation made by him of subclause (1) of Clause 5 of the Fifth Schedule. In the statement of case, the appellant has submitted that as the 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 heard the learned counsel appearing for the respondents.
OUR VIEW
7. The first question to be answered by this Court is 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 1 (1947) Federal Court Reports 130
Hon’ble Governor. Clause 5 of the Fifth Schedule reads thus:
8. On a plain reading of subclause (1) of Clause 5 of the Fifth Schedule, the power of the Hon’ble Governor under the said subclause (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 subclause (1) proceeds on the footing that all the State 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.
9. For interpreting Clause 5, the learned counsel appearing for the appellant has relied upon the decisions of the Federal Court in the cases of Raja Bahadur[1] and Chhaturam[2]. Both the decisions deal with Section 92 of the Government of India Act, 1935, which reads thus: “Administration of Excluded Areas and Partially Excluded Areas:
92. (1) The executive authority of a Province extends to excluded and partially excluded areas therein, but, notwithstanding anything in this Act, no Act of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit. (2) The Governor may make regulations for the peace and good Government of any area in a Province which is for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Federal Legislature or of the Provincial Legislature, or any existing Indian law, which is for the time being applicable to the area in question. Regulations made under this subsection shall be submitted forthwith to the GovernorGeneral and until assented to by him in his discretion shall have no effect, and the provisions of this Part of this Act with respect to the power of His Majesty to disallow Acts shall apply in relation to any such regulations assented to by the GovernorGeneral as they apply in relation to Acts of a Provincial Legislature assented to by him. (3) The Governor shall, as respects any area in a Province which is for the time being, an excluded area, exercise his functions in his discretion.”
10. By virtue of Article 395, the Government of India Act, 1935 has been repealed. SubSection (1) of Section 92 of the Government of India Act, 1935 and subclause (1) of Clause 5 of the Fifth Schedule are completely different. SubSection (1) of Section 92 provides that no Act of the Federal Legislature or a Provincial Legislature shall apply to an Excluded Area unless the Governor by a public notification so directs. However, subClause (1) of Clause 5 of the Fifth Schedule confers a power on the Hon’ble Governor to issue a notification for directing that a particular enactment, either State or Central, will not apply to a Scheduled Area. He also has the power to direct that a particular enactment will apply to a Scheduled Area with modifications as may be specified by him in the notification. Subclause (1) of Clause 5 of the Fifth Schedule proceeds on the basis that all the State and the Central laws which are otherwise applicable to a State apply to Scheduled Areas in the State. Whereas, subSection (1) of Section 92 of the Government of India Act, 1935 provides that no law of Federal or Provincial Legislature will apply to an Excluded Area unless a notification is issued by the Hon’ble Governor issuing a specific direction to that effect. Thus, the reliance placed on subSection (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 a specific notification issued by the Hon’ble Governor applying Central or State laws to a Scheduled Area, the said laws will not apply to the said Scheduled Area, to say the least, is preposterous. In fact, the issue is no longer res integra. There is a binding decision of the Constitution Bench of 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 required consideration. Paragraph 2 of the said decision reads thus:
39.1. Para 5(1) of Schedule V does not confer upon Governor power to enact a law but to direct that a particular Act of Parliament or the State Legislature shall not apply to a Scheduled Area or any part thereof or shall apply with exceptions and modifications, as may be specified in the notification. 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. 39.2...............................” In paragraph 40, the Constitution Bench proceeded to hold thus:
12. In paragraph 80, the Constitution Bench answered Question (1)(c). Paragraph 80 reads thus:
13. 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 subclause (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 subclause (2) of Clause 5 of the Fifth Schedule;
(iii) The power of the Hon’ble Governor under Clause 5
(iv) Therefore, the Fundamental Rights conferred by subclause (e) of Article 19(1) of the Constitution of India on the citizens can also be exercised in relation to the Scheduled Area.
14. Under subclause (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 nonTribals have no right to settle down in a Scheduled Area.
15. 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.
16. 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 nonTribal.
17. 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.
18. 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 subclause (1) of Clause 5 of the Fifth Schedule, the said law was applicable to the Scheduled Area.
19. 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.
20. Hence, the appeal is dismissed with no order as to costs. …..….……………J. (Abhay S. Oka) …...………………J. (Rajesh Bindal) New Delhi; May 10, 2023.