Supreme Court of India
ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTIONversusUNION OF INDIA & ORS.
- Citation
- 2023 INSC 512
- Decided
- 10 May 2023
- Disposal
- Dismissed
- Bench
- ABHAY S OKA
Holding
All Central and State statutes applicable to the state continue to apply to Scheduled Areas unless the Governor, by notification under sub‑clause (1) of Clause 5 of the Fifth Schedule, expressly excludes or modifies them, and such power does not supersede fundamental rights.
Summary
The appellant, a society, challenged the applicability of various Central and State statutes to the Sundargarh district of Orissa, which had been declared a Scheduled Area under Clause 6 of the Fifth Schedule. It contended that non‑tribals could not settle, vote, or contest elections there and that all constituencies should be reserved for Scheduled Tribes, arguing that no law applied unless the Governor issued a notification under sub‑clause (1) of Clause 5 of the Fifth Schedule. The Supreme Court held that, unless the Governor specifically excludes or modifies a law, all Central and State enactments applicable to the state automatically apply to Scheduled Areas. The Governor’s power under Clause 5 is limited to exclusion or modification and does not override fundamental rights. Consequently, non‑tribals retain the right to reside, settle, and vote in the Scheduled Area, and reservation of all constituencies for Scheduled Tribes is not mandated. The Court dismissed the appeal.
Issues considered
- Whether Central and State laws apply to a Scheduled Area in the absence of a Governor's notification under sub‑clause (1) of Clause 5 of the Fifth Schedule.
- The scope and limits of the Governor's power under Clause 5 of the Fifth Schedule, including whether it can create new law or override fundamental rights.
- Whether non‑tribals are barred from residing and settling in a Scheduled Area under Article 19(1)(e).
- Whether non‑tribals residing in a Scheduled Area have the right to vote under the Representation of the People Act, 1950.
- Whether all constituencies in a Scheduled Area must be reserved for Scheduled Tribes under Articles 330 and 332.
- Applicability of the Delimitation Act, 2002 and the Land Acquisition Act, 1894 to the Scheduled Area.
Legislation cited
- Constitution of Indias. Article 19(1)(e), s. Article 244, s. Article 330, s. Article 332, s. Article 371-D, s. Fifth Schedule
- Delimitation Act, 2002
- Government of India Act, 1935s. Section 92
- Land Acquisition Act, 1894
- Representation of the People Act, 1950
Subjects
Scheduled AreasFifth ScheduleGovernor's powerFundamental RightsArticle 19Voting rightsReservationRepresentation of the People ActDelimitation ActLand Acquisition ActTribal rights
Judgment
372 [2023]REPORTS
SUPREME COURT 5 S.C.R. 372 [2023] 5 S.C.R.
A ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 2202 of 2012)
B MAY 10, 2023
[ABHAY S. OKA AND RAJESH BINDAL, JJ.]
Constitution of India, 1950 : 5th Schedule – Power of
Governor under – Application of Central and the State Acts to a
C Scheduled Area-District of Sundargarh in the State of Orissa without
a specific notification making the said Acts applicable to the
Scheduled Area issued by the Governor – Held: All the Central
and the State laws which are applicable to the entire State of Orissa
would continue to apply to the Scheduled Area unless, in exercise
of powers under sub-clause (1) of Clause 5 of the Fifth Schedule,
D
there is a specific notification issued by the Governor making a
particular enactment inapplicable, either fully or partially – Power
of the Hon’ble Governor under Clause 5 of the Fifth Schedule is
restricted to directing that a particular law would not apply to the
Scheduled Area it would apply with such modifications as may be
E 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 – Power of the
Governor under Clause 5 of the Fifth Schedule does not supersede
the Fundamental Rights – Fundamental Rights conferred by sub-
F clause (e) of Art. 19(1) on the citizens can also be exercised in
relation to the Scheduled Area.
Art. 19(1)(e) – Right to reside – If the non-Tribals have right
to settle down in Scheduled Area – Held: Under sub-clause (e) of
Clause (1) of Art. 19, every citizen has a right to reside and settle in
G any 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 any
constraints on the exercise of the Fundamental Rights under Art.
19(1) – Thus, it cannot be said that the non-tribals have no right to
settle down in a Scheduled Area.
H
372
ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION v. 373
UNION OF INDIA & ORS.
Arts. 330 and 332 – Lok Sabha and the State legislative A
constituencies in a Scheduled Area – Reservation for the Schedules
Tribes – Held: Reservation is required to be made in terms of Arts.
330 and 332 – 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 B
Scheduled Area – Thus, the prayer to issue writ of mandamus, as
regards 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 is C
applicable to the Scheduled Area – Right to vote would 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 – Thus, 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 – It cannot be said that only a person belonging D
to Scheduled Area can cast a vote in election of constituencies in
the scheduled area.
Dismissing the appeal, the Court
HELD: 1.1 On a plain reading of sub-clause (1) of Clause 5 E
of the Fifth Schedule, to the Constitution of India the power of
the Hon’ble Governor under the said sub-clause (1) extends to
directing by a notification that a particular Central or State
legislation will not apply to a Scheduled Area in the State, and;
directing by a notification that a particular State or Central Act
F
will apply to a Scheduled Area subject to certain modifications.
The first part of sub-clause (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 G
Scheduled Area. [Para 8][379-D-G]
1.2 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
H
374 SUPREME COURT REPORTS [2023] 5 S.C.R.
A apply 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 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
B 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. 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 it will apply
with such modifications as may be specified in the notification
C issued under subclause (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. 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.
D 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. [Para
13][385-C-G]
1.4 Under sub-clause (e) of Clause (1) of Article 19 of the
E 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, the submission
that the non-Tribals have no right to settle down in a Scheduled
Area is rejected. The submission that the Fifth Schedule is a law
F 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. [Para 14, 15][385-G-H; 386-A-B]
1.5 As far as the right to vote is concerned, the 1950 Act is
G 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
H
ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION v. 375
UNION OF INDIA & ORS.
electoral roll of a constituency, in which he is ordinarily residing. A
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. [Para 16][386-B-D]
1.6 As regards providing reservation for all the Lok Sabha
and the State Legislative constituencies in a Scheduled Area, the B
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 C
Scheduled Area. Therefore, even the said prayer to issue a writ
of mandamus, as regards the reservation for the Scheduled
Tribes, is rejected. [Para 17][386-D-E]
1.7 The Land Acquisition Act, 1894 was made applicable to
the whole of India except the State of Jammu and Kashmir. In D
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. [Para 18][386-E-F]
1.8 There is absolutely no merit in the appeal, and the High
Court was right when it dismissed the writ petition filed by the E
appellant. [Para 19][386-G]
Chebrolu Leela Prasad Rao & Ors. v. State of Andhra
Pradesh & Ors (2021) 11 SCC 401 – followed.
Raja Bahadur Kamakshya Narain Singh of Ramgarh F
v. Commissioner of Income Tax Bihar (1947) Federal
Court Reports 130; Chatturam v. Commissioner of
Income Tax AIR 1947 FC 32 – referred.
Case Law Reference
(2021) 11 SCC 401 followed Para 11 G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2202
of 2012.
H
376 SUPREME COURT REPORTS [2023] 5 S.C.R.
A From the Judgment and Order dated 09.07.2010 of the High Court
of 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, Sunil
B Mung, 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.
C FACTUAL ASPECTS
1. 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’).
D 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
E
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
F 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 sub-
clause (1) of Clause 5 of the Fifth Schedule unless there is a specific
G 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
H
ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION v. 377
UNION OF INDIA & ORS. [ABHAY S. OKA, J.]
absence of any such notification. A Division Bench of the High Court of A
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 B
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 sub-clause (1) of Clause 5 of the Fifth
Schedule by the Hon’ble Governor declaring that any particular law will C
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 D
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 E
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 F
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 G
is applicable to a Scheduled Area.
5. Inviting our attention to the Fundamental Rights guaranteed
under sub-clause (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. H
378 SUPREME COURT REPORTS [2023] 5 S.C.R.
A 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 Bihar1 and in the case of
Chatturam v. Commissioner of Income Tax 2 in support of the
interpretation made by him of sub-clause (1) of Clause 5 of the Fifth
Schedule. In the statement of case, the appellant has submitted that as
B
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
C 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 Hon’ble Governor. Clause 5 of the Fifth Schedule
reads thus:
D “5. Law applicable to Scheduled Areas. — (1) Notwithstanding
anything in this Constitution, the Governor may by public
notification direct that any particular Act of Parliament or
of the Legislature of the State shall not apply to a Scheduled
Area or any part thereof in the State or shall apply to a
Scheduled Area or any part thereof in the State subject to
E such exceptions and modifications as he may specify in the
notification 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 good
government of any area in a State which is for the time being a
F Scheduled Area.
In particular and without prejudice to the generality of the foregoing
power, such regulations may—
(a) prohibit or restrict the transfer of land by or among members
of the Scheduled Tribes in such area;
G
(b) regulate the allotment of land to members of the Scheduled
Tribes in such area;
1
(1947) Federal Court Reports 130
2
H AIR 1947 FC 32
ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION v. 379
UNION OF INDIA & ORS. [ABHAY S. OKA, J.]
(c) regulate the carrying on of business as money-lender by persons A
who lend money to members of the Scheduled Tribes in such
area.
(3) In making any such regulation as is referred to in sub-paragraph
(2) of this paragraph, the Governor may repeal or amend any Act
of Parliament or of the Legislature of the State or any existing B
law which is for the time being applicable to the area in question.
(4) All regulations made under this paragraph shall be submitted
forthwith to the President and, until assented to by him, shall have
no effect.
C
(5) No regulation shall be made under this paragraph unless the
Governor making the regulation has, in the case where there is a
Tribes Advisory Council for the State, consulted such Council.”
(emphasis added)
8. On a plain reading of sub-clause (1) of Clause 5 of the Fifth D
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; E
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
F
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
G
appellant has relied upon the decisions of the Federal Court in the cases
of Raja Bahadur1and Chhaturam2. 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:
H
380 SUPREME COURT REPORTS [2023] 5 S.C.R.
A 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
B
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
C 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.
D Regulations made under this sub-section shall be submitted
forthwith to the Governor-General 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
E the Governor-General 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.”
F (emphasis added)
10. By virtue of Article 395, the Government of India Act, 1935
has been repealed. Sub-Section (1) of Section 92 of the Government of
India Act, 1935 and sub-clause (1) of Clause 5 of the Fifth Schedule are
completely different. Sub-Section (1) of Section 92 provides that no Act
G of the Federal Legislature or a Provincial Legislature shall apply to an
Excluded Area unless the Governor by a public notification so directs.
However, sub-Clause (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
H
ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION v. 381
UNION OF INDIA & ORS. [ABHAY S. OKA, J.]
apply to a Scheduled Area with modifications as may be specified by A
him in the notification. Sub-clause (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, sub-Section (1) of Section 92 of the Government of India Act,
1935 provides that no law of Federal or Provincial Legislature will apply
B
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 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 a
specific notification issued by the Hon’ble Governor applying Central or C
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 & Ors3. In paragraph 2 of the said decision, D
the Constitution Bench formulated the questions which required
consideration. Paragraph 2 of the said decision reads thus:
“2. Several questions have been referred for consideration in the
order dated 11-1-2016 [Chebrolu Leela Prasad Rao v. State of
A.P., (2021) 11 SCC 526]. We have renumbered Questions 1(a), E
(b), (c) and (d) based on interconnection. The questions are as
follows: (Chebrolu Leela Prasad Rao case [Chebrolu Leela
Prasad 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 the
F
Constitution of India?
(a) Does the provision empower the Governor to make
a new law?
(b) Does the power extend to subordinate legislation?
(c) Can the exercise of the power conferred therein G
override fundamental rights guaranteed under Part III?
(d) Does the exercise of such power override any parallel
exercise of power by the President under Article 371-D?
3
(2021) 11 SCC 401 H
382 SUPREME COURT REPORTS [2023] 5 S.C.R.
A (2) Whether 100% reservation is permissible under the
Constitution?
(3) Whether the notification merely contemplates a classification
under Article 16(1) and not reservation under Article 16(4)?
(4) Whether the conditions of eligibility (i.e. origin and cut-off
B date) to avail the benefit of reservation in the notification are
reasonable?”
(emphasis added)
In paragraph 39.1, the Constitution Bench held thus:
C “39. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
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
D 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
E
corners of the provisions.
39.2. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..”
(emphasis added)
In paragraph 40, the Constitution Bench proceeded to hold thus:
F
“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. In Jatindra v. Province of Bihar [Jatindra v.
G Province of Bihar, 1949 SCC OnLine FC 23 : ILR (1949) 28 Pat
703 : 1949 FLJ 225] , it was held that the power of the Governor
under Para 5 is a legislative power and the Governor is empowered
to change or modify the provisions of the Act or the section as he
deems fit by way of issuing a notification. The power under Para
H 5(1) is limited to the application of the Governor’s decision to
ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION v. 383
UNION OF INDIA & ORS. [ABHAY S. OKA, J.]
apply an Act or making modification or creating exceptions. A
Though the power is legislative to some extent, that is confined to
applicability, modification, or creating exceptions concerning the
Act of Parliament or the State. While Para 5(2) confers the power
of independent legislation, the Governor has plenary power of
framing regulations for the peace and good governance of a
B
Scheduled Area. He is the repository of faith to decide as to the
necessity. The Governor is empowered by Para 5(3) to repeal or
amend any Act of Parliament or State Legislature, following the
procedure prescribed therein, in exercise of making regulations
as provided under Para 5(2) of Schedule V. The aspect of power
was considered in Ram Kirpal Bhagat v. State of Bihar [Ram C
Kirpal 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 whether
the Bihar Regulation I of 1951 is in excess of the Governor’s
powers. The contentions were: first, that the Regulation I of 1951 D
could not at all have been made; secondly, that Regulations deal
with the subject-matter and did not mean power to apply law and
thirdly, the power to extend a law passed by another legislature
was said to be not a legislative function, but was a conditional
legislature. The legislation, in the present case, is in relation to
what is described as Scheduled Areas. The Scheduled Areas are E
dealt with by Article 244 of the Constitution and the Fifth Schedule
to the Constitution. Prior to the Constitution, the excluded areas
were dealt with by Sections 91 and 92 of the Government of India
Act, 1935. The excluded and the partially excluded areas were
areas so declared by Order in Council under Section 91 and under F
Section 92. No act of the Federal Legislature or of the
Provincial Legislature was to apply to an excluded or a
partially excluded area unless the Governor by public
notification so directed. Sub-section (2) of Section 92 of
the Government of India Act, 1935 conferred power on the
Governor to make regulations for the peace and good G
government of any area in a Province which was an excluded
or a partially excluded area and any regulations so made
might repeal or amend any Act of the Federal Legislature
or the Provincial Legislature or any existing Indian law
which was for the time being applicable to the area in H
384 SUPREME COURT REPORTS [2023] 5 S.C.R.
A question. The extent of the legislative power of the Governor
under Section 92 of the Government of India Act, 1935 in making
regulations for the peace and good government of any area
conferred on the Governor in the words of Lord Halsbury “an
utmost discretion of enactment for the attainment of the objects
pointed to.” (See Riel v. R. [Riel v. R., (1885) LR 10 AC 675
B
(PC)], AC p. 678.) In that case the words which fell for
consideration by the Judicial Committee were “the power of
Parliament of Canada to make provisions for the
administration, peace, order and good government of any
territory not for the time being included in any province”. It
C was contended that if any legislation differed from the provisions
which in England had been made for the administration, peace,
order and good government then the same could not be sustained
as valid. That contention was not accepted. These words were
held to embrace the widest power to legislate for the peace
D and good government for the area in question.””
(emphasis added)
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 make
E new law is not available in view of the clear language of
Para 5(1), Fifth Schedule does not recognise or confer such
power, but only power is not to apply the law or to apply it
with exceptions or modifications. Thus, the notification is ultra
vires to Para 5(1) of Schedule V to the Constitution.”
F (emphasis added)
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 with
G the Scheduled Areas. It is not meant to prevail over the
Constitution. The power of the Governor is pari passu with the
legislative power of Parliament and the State. The legislative power
can be exercised by Parliament or the State subject to the provisions
of Part III of the Constitution. In our considered opinion, the
power of the Governor does not supersede the fundamental
H
ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION v. 385
UNION OF INDIA & ORS. [ABHAY S. OKA, J.]
rights under Part III of the Constitution. It has to be A
exercised subject to Part III and other provisions of the
Constitution. When Para 5 of the Fifth Schedule confers power
on the Governor, it is not meant to be conferral of arbitrary power.
The Constitution can never aim to confer any arbitrary power on
the constitutional authorities. They are to be exercised in a rational
B
manner keeping in view the objectives of the Constitution. The
powers are not in derogation but the furtherance of the
constitutional aims and objectives.”
(emphasis added)
13. Therefore, to conclude; C
(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 D
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 E
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 F
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.
14. Under sub-clause (e) of Clause (1) of Article 19 of the G
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.
H
386 SUPREME COURT REPORTS [2023] 5 S.C.R.
A 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
B 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
C 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.
17. As regards providing reservation for all the Lok Sabha and
the State Legislative constituencies in a Scheduled Area, the appellant
D 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
E
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 sub-clause (1)
F 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
G 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.
Nidhi Jain Appeal dismissed.
H (Assisted by : Tamana, LCRA)
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