Supreme Court of India
On May 10, the Supreme Court of India dismissed a plea contending that no one, except the members of the Scheduled Tribes, has the right to settle down in the Scheduled Area. It was argued that all people, not belonging to Scheduled Tribes, residing in the Scheduled Area are unlawful occupants and therefore, disentitled to exercise their right to vote.
Furthermore, it was argued that all constituencies in the Scheduled Area should be declared as reserved constituencies under Articles 330 and 332 of the Constitution. It was also argued that no candidates, other than the candidates belonging to the Scheduled Tribes, should have the right to contest the Legislative Assembly elections or the Lok Sabha elections in the Scheduled Area.
The appellant also argued that none of the laws enacted by the Government of India or the State Legislature are applicable to the Scheduled Area unless there is a specific notification issued under sub-¬clause (1) of Clause 5 of the Fifth Schedule of the Constitution by the Governor declaring that any particular law will be applicable to the Scheduled Area.
The Supreme Court notes that the Governor has the power to direct that a Central or State law will not be applicable to a Scheduled Area in the State, or will be applicable subject to certain modifications, under sub-¬clause (1) of Clause 5 of the Fifth Schedule of the Constitution. The court said, “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.”
Furthermore, the Supreme Court noted, “By virtue of Article 395, the Government of India Act, 1935 has been repealed… Thus, the reliance placed on sub¬-Section (1) of Section 92 of the Government of India Act, 1935 is not at all relevant.” The Supreme Court further said, “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.”
The Supreme Court held that all Central and State laws applicable to the entire State of Orissa will continue to be applicable unless the Governor issues a specific notification, in the exercise of powers under sub-clause (1) of Clause 5 of the Fifth Schedule to make a particular enactment partially, or fully, inapplicable.
The Supreme Court further held that the powers of the Governor under Clause 5 of the Fifth Schedule is restricted to directing that a particular law will not apply to the Scheduled Area or it will apply with such modifications as may be specified in the notification. Furthermore, the Supreme Court held that the powers of the Governor under Clause 5 of the Fifth Schedule do not supersede the Fundamental Rights enshrined in Part III of the Constitution.
The Supreme Court also rejected the contention that all people not belonging to Scheduled Tribes are unlawful occupants in the Scheduled Area. The court upheld the fundamental right granted under Article 19(1)(e) of the Constitution which allows all citizens to reside and settle in any part of India. The court said, “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.”
The Supreme Court concluded, “We are, therefore, of the view that there is absolutely no merit in the appeal, and the High Court was right when it dismissed the writ petition filed by the appellant. Only in view of the claim that the appellant is working for the welfare of the tribals that we refrain from saddling the appellant with costs.”
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