ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION versus UNION OF INDIA & ORS.

Citation: [2023] 5 S.C.R. 372 · Decided: 10-05-2023 · Supreme Court of India · Bench: ABHAY S. OKA · Disposal: Dismissed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 5 S.C.R.
[2023] 5 S.C.R. 372
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ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 2202 of 2012)
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
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,
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
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-
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
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.
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Arts. 330 and 332 – Lok Sabha and the State legislative
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
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
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
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
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
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
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
ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION v.
UNION OF INDIA & ORS.
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SUPREME COURT REPORTS
[2023] 5 S.C.R.
apply to the said Scheduled Area, to say the least, is preposterous.
[Para 11][381-C-D]
1.3 All the Central and th

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