ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION vs UNION OF INDIA 2023

ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION vs UNION OF INDIA 2023

Case Title and Citation

Adivasis for Social and Human Rights Action vs. Union of India & Ors. CIVIL APPEAL NO. 2202 OF 2012 (Decided on May 10, 2023).

Factual Background

The case concerns the applicability of Central and State laws, as well as the rights of residents, within the Sundargarh District of Orissa, which was declared a Scheduled Area by the President on December 31, 1977. The appellant, a registered society, approached the High Court arguing that non-Scheduled Tribe (ST) persons were unlawful occupants who had no right to settle or vote in the Scheduled Area. The appellant further contended that no Central or State law, including the Representation of the People Act, 1950, and the Land Acquisition Act, 1894, applied to the Scheduled Area unless the Governor issued a specific notification applying them under Clause 5(1) of the Fifth Schedule. The appellant also sought a declaration that every constituency in the Scheduled Area must be reserved for ST candidates. The High Court dismissed the original petition.

Issue(s)

1. Whether Central and State Acts apply to a Scheduled Area unless the Hon’ble Governor issues a specific notification making the said Acts applicable under sub-clause (1) of Clause 5 of the Fifth Schedule.
2. Whether every person who does not belong to a Scheduled Tribe and resides in the Scheduled Area is an unlawful occupant and is thereby disentitled to exercise the right to vote.
3. Whether all constituencies in the Scheduled Area must be declared reserved constituencies for members belonging to the Scheduled Tribes.

Decision of the Supreme Court

The Supreme Court dismissed the appeal. The Court held that Central and State laws automatically apply to Scheduled Areas unless specifically excluded by the Governor. The Court further confirmed that non-Tribals have the right to settle and vote in the Scheduled Area.

Reason for the Decision

1. Applicability of Laws: Sub-clause (1) of Clause 5 of the Fifth Schedule empowers the Governor to direct, by public notification, that a particular Central or State law shall not apply to a Scheduled Area, or shall apply subject to exceptions and modifications. This structure indicates that all State and Central legislations applicable to the State are presumed to be applicable to the Scheduled Areas within that State.
2. Binding Precedent: The Constitution Bench decision in Chebrolu Leela Prasad Rao & Ors. v. State of Andhra Pradesh & Ors held that the Acts of Parliament or the appropriate legislature apply to the Scheduled Areas, and the Governor’s power is to exclude their operation by notification. The assertion that laws are inapplicable unless notified was deemed “preposterous”.
3. Fundamental Rights: The power of the Governor under Clause 5 of the Fifth Schedule does not supersede the Fundamental Rights under Part III of the Constitution. The fundamental right of every citizen to reside and settle in any part of the territory of India (Article 19(1)(e)) applies to the Scheduled Area. Consequently, the argument that non-Tribals have no right to settle was rejected.
4. Right to Vote and Reservation: The Representation of the People Act, 1950, applies to the Scheduled Area, meaning any eligible person ordinarily residing there, even if non-Tribal, has the right to vote. Articles 330 and 332, which govern reservation, do not provide that all constituencies in the Scheduled Areas must be reserved for the Scheduled Tribes.

Conclusion

The appeal lacks merit, as the Central and State laws applicable to Orissa apply equally to the Sundargarh Scheduled Area unless specifically directed otherwise by the Governor. The Fundamental Rights, including the right to reside and settle, are operational in the Scheduled Area. Therefore, non-Tribals have the right to settle and vote, and the prayer seeking mandatory 100% reservation of constituencies for Scheduled Tribes must be rejected.