Supreme Court Clarifies Applicability of Laws in Scheduled Areas: Adivasis for Social and Human Rights Action vs. Union of India (2023)

Date of the Judgment: 10 May 2023

Citation: 2023 INSC 512

Judges: Abhay S. Oka, J., Rajesh Bindal, J.

Do laws enacted by the Central or State legislatures automatically apply to Scheduled Areas, or do they require a specific notification from the Governor to be applicable? The Supreme Court of India recently addressed this crucial question in a case concerning the rights of residents in Scheduled Areas. This judgment clarifies the extent of the Governor’s powers under the Fifth Schedule of the Constitution and its impact on the applicability of laws in these areas. The bench comprised of Justice Abhay S. Oka and Justice Rajesh Bindal, with the majority opinion authored by Justice Abhay S. Oka.

Case Background

The case arose from a writ petition filed by Adivasis for Social and Human Rights Action, a society registered under the Societies Registration Act, 1860, before the High Court of Orissa. The petitioner challenged the applicability of general laws to the Scheduled Area of Sundargarh district in Orissa, which was declared as a Scheduled Area by the President of India on 31st December 1977.

The petitioner argued that only members of Scheduled Tribes have the right to settle in Scheduled Areas and that non-tribals residing there are unlawful occupants, ineligible to vote. They further contended that all constituencies in Scheduled Areas should be reserved for Scheduled Tribes, and that no non-tribal candidate should be allowed to contest elections in these areas. The petitioner also argued that Central and State laws do not apply to Scheduled Areas unless specifically notified by the Governor under Clause 5(1) of the Fifth Schedule of the Constitution.

The High Court of Orissa dismissed the writ petition, leading the appellant to approach the Supreme Court.

Timeline

Course of Proceedings

The High Court of Orissa dismissed the writ petition filed by the appellant. The High Court did not accept the contention that Central and State laws do not apply to Scheduled Areas unless specifically notified by the Governor. Aggrieved by the decision of the High Court of Orissa, the appellant preferred an appeal before the Supreme Court, which was granted leave on 14th February 2012.

Legal Framework

The core of the legal framework in this case revolves around the Fifth Schedule of the Constitution of India, specifically Clause 5, which deals with the administration and control of Scheduled Areas. Clause 5 states:

“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 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.”

The appellant contended that under Article 244(1) of the Constitution, the provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas. They argued that the Fifth Schedule is a law made by the Constitution, and no other law made by the Central or State Legislature can be applied to a Scheduled Area unless specifically notified by the Governor. The appellant also invoked Article 19(1)(e) of the Constitution, which guarantees the right to reside and settle in any part of India, arguing that only the law made under Clause 5 of the Fifth Schedule prevails in Scheduled Areas.

Arguments

Appellant’s Submissions:

• The appellant argued that no Central or State law applies to a Scheduled Area unless the Governor issues a specific notification under Clause 5(1) of the Fifth Schedule.
• They contended that Article 244(1) dictates that the Fifth Schedule’s provisions are constitutional law, overriding other legislation in Scheduled Areas.
• The appellant 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.
• They argued that the Governor must first decide which Acts of Parliament or the State Legislature should apply to Scheduled Areas and then issue a notification for each applicable law.
• The appellant relied on the decisions of the Federal Court in Raja Bahadur Kamakshya Narain Singh of Ramgarh v. Commissioner of Income Tax Bihar and Chatturam v. Commissioner of Income Tax to support their interpretation of Clause 5(1) of the Fifth Schedule.
• They also argued that the Land Acquisition Act, 1894, is not applicable to the Scheduled Area because it has not been notified by the Governor.
• The appellant contended that only members of the Scheduled Tribes have the right to settle in Scheduled Areas and that non-tribals residing there are unlawful occupants, ineligible to vote.
• They argued that all constituencies in Scheduled Areas should be reserved for Scheduled Tribes, and that no non-tribal candidate should be allowed to contest elections in these areas.

Respondents’ Submissions:

• The respondents argued that Central and State laws apply to Scheduled Areas unless specifically excluded by the Governor through a notification.
• The respondents contended that the power of the Governor under Clause 5 of the Fifth Schedule is limited to modifying or excluding the application of existing laws and does not extend to making new laws.
• They argued that the right to vote is governed by the Representation of the People Act, 1950, which applies to Scheduled Areas, allowing all eligible residents to vote, regardless of their tribal status.
• The respondents submitted that reservation in Scheduled Areas is governed by Articles 330 and 332 of the Constitution, which do not mandate that all constituencies be reserved for Scheduled Tribes.

Issues Framed by the Supreme Court

The Supreme Court addressed the following key issues:

1. Whether Central and 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 Governor.
2. Whether a non-Tribal has the right to vote in a Scheduled Area.
3. Whether all the constituencies in a Scheduled area should be reserved for the Scheduled Tribes.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Federal Court’s decisions in Raja Bahadur Kamakshya Narain Singh of Ramgarh v. Commissioner of Income Tax Bihar and Chatturam v. Commissioner of Income Tax were distinguished as they pertained to Section 92 of the Government of India Act, 1935, which is different from Clause 5 of the Fifth Schedule.
• The Supreme Court followed its Constitution Bench decision in Chebrolu Leela Prasad Rao & Ors. v. State of Andhra Pradesh & Ors. [2021] 11 SCC 401, which clarified that the Governor’s power under Para 5(1) of Schedule V is to exclude or modify existing laws, not to enact new laws.
• The Court also followed the decision in Jatindra v. Province of Bihar [1949 SCC OnLine FC 23], which 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 Court also followed the decision in Ram Kirpal Bhagat v. State of Bihar [1969] 3 SCC 471, which held that 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.”

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by a textual interpretation of Clause 5(1) of the Fifth Schedule and the precedent set by the Constitution Bench in Chebrolu Leela Prasad Rao. The Court emphasized that the Governor’s power is limited to excluding or modifying existing laws, not creating new ones. The Court also underscored the importance of the fundamental rights guaranteed under Part III of the Constitution, ensuring that the rights of all citizens, including non-tribals, are protected in Scheduled Areas. The Court rejected the notion that the Fifth Schedule creates a separate legal regime that overrides other laws or fundamental rights.

Fact:Law Ratio:

The Court’s reasoning was heavily based on legal interpretation rather than factual analysis of the specific case. The emphasis was on the correct understanding of the constitutional provisions and the precedents.

Logical Reasoning:

The Court considered the argument that the Fifth Schedule creates a separate legal regime for Scheduled Areas, but rejected it, stating that the Governor’s powers are not meant to override the Constitution or fundamental rights. The Court also considered the argument that non-tribals should not have the right to settle or vote in Scheduled Areas, but rejected this as well, stating that it violates the fundamental rights guaranteed under Article 19(1)(e) of the Constitution.

The Court concluded that the Fifth Schedule does not create a separate legal regime that overrides other laws or fundamental rights. The Court held that Central and State laws apply to Scheduled Areas unless specifically excluded by the Governor. The Court also held that non-tribals have the right to settle and vote in Scheduled Areas, and that not all constituencies in Scheduled Areas need to be reserved for Scheduled Tribes.

The Court quoted the following from the judgment:

“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 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.”

“The power is conferred on the Governor to deal with 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.”

There was no minority opinion in this case. The judgment was delivered by a bench of two judges, with Justice Abhay S. Oka authoring the opinion.

Key Takeaways

• Central and State laws automatically apply to Scheduled Areas unless the Governor issues a specific notification to exclude or modify them.
• The Governor’s power under the Fifth Schedule is limited to modifying or excluding existing laws, not creating new ones.
• Non-tribals have the right to reside, settle, and vote in Scheduled Areas, as guaranteed by the Constitution.
• Not all constituencies in Scheduled Areas need to be reserved for Scheduled Tribes.
• The Fifth Schedule does not create a separate legal regime that overrides other laws or fundamental rights.

Directions

No specific directions were given by the Supreme Court in this judgment.

Specific Amendments Analysis

There is no specific amendment analysis in this judgment.

Development of Law

The ratio decidendi of this case is that the Central and State laws apply to the Scheduled Areas unless specifically excluded or modified by the Governor. This judgment reaffirms the principle that the Fifth Schedule of the Constitution does not create a separate legal regime that overrides other laws or fundamental rights. This clarifies the legal position and settles the law that the Governor does not have power to enact a new law but only to modify or exclude an existing law. This is in line with the previous position of the law as laid down in Chebrolu Leela Prasad Rao.

Conclusion

The Supreme Court’s judgment in Adivasis for Social and Human Rights Action vs. Union of India clarifies the applicability of laws in Scheduled Areas, affirming that Central and State laws apply automatically unless specifically excluded by the Governor. The Court upheld the fundamental rights of all citizens to reside and vote in Scheduled Areas, ensuring that these areas are not governed by a separate legal regime that overrides the Constitution. This decision reinforces the constitutional framework for the administration of Scheduled Areas and the protection of fundamental rights.