Judgment Intelligence
Petition DismissedAdivasis for Social and Human Rights Action v. Union of India & Ors.
2023 INSC 512
Civil Appeal No. 2202 of 2012
- Court
- Supreme Court of India
- Date of Decision
- 10 May 2023
- Bench
- Justice Abhay S. Oka and Justice Rajesh Bindal
- Relevant Acts & Sections
- Constitution of India - Article 19(1)(e), Article 244(1), Articles 330 and 332, Fifth Schedule, Clause 5; Representation of the People Act, 1950; Delimitation Act, 2002; Land Acquisition Act, 1894
Final Outcome
Appeal dismissed with no order as to costs, the Court refraining from costs only because the appellant claims to work for tribal welfare (paras 19-20).
Source Supreme Court of India, www.sci.gov.in — judgment dated 10.05.2023
Key holdings
- The Governor's Clause 5(1) power is to exclude or modify a law, not to bring it into force (paras 8, 13).
- Without such a notification, all Central and State laws apply in a Scheduled Area (para 13).
- The Governor cannot override fundamental rights under Part III through the Fifth Schedule (paras 12-13).
- Non-tribals have the right to reside, settle and vote in a Scheduled Area (paras 14, 16).
- Articles 330 and 332 do not require every constituency in a Scheduled Area to be reserved (para 17).
Case explainer by NyayVidhan: an account of this judgment and the law it laid down, not the court's text. The judgment itself is the authoritative version.
Brief Facts
On 31.12.1977 the President declared the whole of Sundargarh district in Orissa a Scheduled Area (para 1). A society working for tribals petitioned the Orissa High Court, contending that only Scheduled Tribe members may settle there, that non-tribal residents are unlawful occupants who cannot vote, that every constituency must be reserved for Scheduled Tribes, and that no Central or State law, including the Representation of the People Act, 1950 and the Delimitation Act, 2002, applies without the Governor's notification (paras 1-2). The High Court dismissed the petition (para 2).
Court's Findings
Clause 5(1) of the Fifth Schedule lets the Governor direct that a law shall not apply to a Scheduled Area, or shall apply with exceptions and modifications; it therefore proceeds on the footing that all laws already apply there (para 8). Section 92 of the Government of India Act, 1935, under which no law applied to excluded areas without a notification, is entirely different, so the Federal Court rulings relied on were irrelevant (paras 9-10). The contrary contention was 'preposterous' and settled by the Constitution Bench in Chebrolu Leela Prasad Rao, which also held that the Governor's power does not override fundamental rights (paras 11-13). Every citizen may reside and settle anywhere in India under Article 19(1)(e), subject to reasonable restrictions by law, and the Fifth Schedule, even if treated as a law, places no constraint on that right (paras 14-15). Any eligible voter ordinarily resident in the area may vote under the 1950 Act, and Articles 330 and 332 do not require all constituencies to be reserved (paras 16-17). The Land Acquisition Act, 1894 also applied (para 18).
Legal Principle
Central and State laws applicable to a State apply to its Scheduled Areas unless the Governor, by a notification under Clause 5(1) of the Fifth Schedule, excludes or modifies them; that power does not supersede fundamental rights, so non-tribal citizens may reside and vote there (para 13).
Precedents Relied Upon
- Chebrolu Leela Prasad Rao & Ors. v. State of Andhra Pradesh & Ors (2021) 11 SCC 401
Para 5(1) of the Fifth Schedule lets the Governor exclude or modify a law, not enact one; laws apply to Scheduled Areas unless excluded; the Governor's power is subject to Part III.
- Raja Bahadur Kamakshya Narain Singh of Ramgarh v. Commissioner of Income Tax Bihar (1947) Federal Court Reports 130
Decided under Section 92 of the Government of India Act, 1935, which differs entirely from Clause 5(1) of the Fifth Schedule.
