Adivasis for Social and Human Rights Action vs Union of India & Ors.

Representation of People’s Act, 1950: Right to vote – Nontribal’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 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

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 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. 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 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 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 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. [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 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, 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 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 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 v. Commissioner of Income Tax Bihar (1947) Federal Court Reports 130; Chatturam v. Commissioner of Income Tax AIR 1947 FC 32 – referred.