The Supreme Court has held that citizens who are not members of Scheduled Tribes can settle in areas that fall under the Fifth Schedule of the Constitution, subject to reasonable restrictions.
Such citizens also have the right to vote in Fifth Schedule areas, the court said.
The Fifth Schedule gives the president the power to demarcate areas where there is a need to safeguard the economic and cultural interests of the Scheduled Tribes. Currently, ten states have Fifth Schedule areas – Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana.
The Supreme Court passed the judgement on May 10 in response to a petition by an organisation named Adivasis for Social and Human Rights Action. The organistion had challenged an order of the Orissa High Court that held that non-Adivasi citizens had the right to live in a Scheduled Area. The High Court order pertained to the Sundargarh district, which has been a Scheduled Area since 1977.
“Under subclause (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,” a bench comprising Justices AS Oka and Rajesh Bindal said. “However, by making a law, reasonable restrictions can be put on the said Fundamental Right as provided in Clause (5) of Article 19. Therefore, we reject the argument that non-tribals have no right to settle down in a Scheduled Area.”
The bench termed as misconceived the organisation’s contention that the Fifth Schedule was a law passed by Parliament. “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,” it said.
The Supreme Court said that the governor’s power under the Fifth Schedule is limited to directing that a particular law will not apply to a Scheduled Area, or that it will apply with modifications. The governor’s power does not supersede fundamental rights under the Constitution, it said.
The bench noted that the right to vote under the Representation of the People Act applies to Sundargarh, and so, the organisation could not contend that only members of Scheduled Tribes could vote there.
The court also rejected the argument that all electoral constituencies in Scheduled Areas should be reserved for Scheduled Tribes. It noted that such reservations for Scheduled Castes and Scheduled Tribes is mandated under Articles 330 (which pertains to Lok Sabha seats) and 332 (which pertains to state Assembly seats).
“These provisions do not provide that all the constituencies in the Scheduled Areas shall be reserved for Scheduled Tribes,” the court said.
The bench dismissed the petition filed by Adivasis for Social and Human Rights Action. The court noted that it was not imposing costs on the organisation only because of its claim that it was working for the welfare of Adivasis.
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