CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS.

C The Judgment of the Court was delivered by ARUN MISHRA, J.

1Copy pinpoint1. In the reference, the validity of the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh D providing 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh, is under challenge.

2Copy pinpoint2. Several questions have been referred for consideration in the order dated 11.1.2016. We have renumbered question nos.1(a)(b)(c) E and (d) based on interconnection. The questions are as follows: “(1) What is the scope of paragraph 5(1), Schedule V to the Constitution of India? (a) Does the provision empower the Governor to make a new law? F (b) Does the power extend to subordinate legislation? (c) Can the exercise of the power conferred therein override fundamental rights guaranteed under Part III? (d) Does the exercise of such power override any parallel exercise G of power by the President under Article 371D? (2) Whether 100% reservation is permissible under the Constitution? (3) Whether the notification merely contemplates a classification under Article 16(1) and not reservation under Article 16(4)? H

CHEBROLU LEELA PRASAD RAO & ORS. v. 43 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

(4) Whether the conditions of eligibility (i.e., origin and cut-off date) to avail the benefit of reservation in the notification are reasonable?”

3Copy pinpoint3. The facts in the backdrop project that by G.O.Ms. No.275 dated 5.11.1986, issued by the Governor in exercise of power under para 5(1) of Schedule V to the Constitution of India, directing the posts of teachers in educational institutions in the scheduled tribe areas shall be reserved for Scheduled Tribes only notwithstanding anything contained in any other order or rule or law in force. The Andhra Pradesh Administrative Tribunal (for short “the tribunal”) quashed the notification by order dated 25.8.1989. The order was questioned in this Court in C.A. Nos.2305-06/1991, which was dismissed as withdrawn on 20.3.1998. C

4Copy pinpoint4. Another G.O.Ms. No.73 dated 25.4.1987 was issued to amend GOMs. No.275 dated 5.11.1986 to allow the appointment of non-tribals to hold the posts of teachers in the scheduled areas till such time the qualified local tribals were not made available. After that, non-tribals who were appointed as teachers in the scheduled areas filed Writ Petition D No.5276/1993 in the High Court of Andhra Pradesh at Hyderabad against termination of their services. The same was allowed vide judgment and order dated 5.6.1996 and GOMs. No.73 dated 25.4.1987, and the advertisements were held to be violative of Article 14 of the Constitution of India. In writ appeal, the order of the Single Bench was set aside by E the Division Bench vide judgment and order dated 20.8.1997. The decision in W.P. No.16198/1988 thus prevailed. The non-tribal appointees preferred Civil Appeal 6437/1998 before this Court, which was allowed on 18.12.1998.

5Copy pinpoint5. After this Court rendered the decision on 18.12.1998, the F Government issued a fresh notification vide GOMs. No. 3 dated 10.1.2000 effectively providing for 100% reservation in respect of appointment to the posts of teachers in the scheduled areas. The tribunal set aside the GOMs. Aggrieved thereby, writ petitions were filed in the High Court, a 3-Judge Bench by majority upheld the validity of G.O. Aggrieved by the same, the appeals have been preferred. G

6Copy pinpoint6. The majority view opined that historically scheduled areas were treated specially, and affirmative action taken was in the constitutional spirit. The notification was a step for increasing literacy in the scheduled areas and also aimed at providing the availability of teachers in every H

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A school in the scheduled areas. 100% reservation can be sustained on the ground that it was based on intelligible differentia, and the classification has nexus with the object sought to be achieved. The G.O. became necessary considering the phenomenal absenteeism of the teachers in the schools situated in the scheduled areas and was a step in aid to promote educational developments of tribals. In extraordinary situations, B reservation can exceed 50%. The Governor possessed the power to issue the impugned notification under Schedule V, para 5(1) of the Constitution. The same overrides all other provisions of the Constitution, including Part III of the Constitution of India.

7Copy pinpoint7. The High Court in the minority view opined that providing 100% C reservation for Scheduled Tribes in scheduled areas offends the spirit of Articles 14 and 16 of the Constitution of India. The Governor is not conferred power to make any law in derogation to Part III or other provisions of the Constitution of India in the exercise of his power under Clause I, Para 5 of Schedule V. It was also held that G.O.Ms. No.3 is D discriminatory as the same adversely affects not only the open category candidates but also other Scheduled Castes, Scheduled Tribes, and backward classes. It also opined that the reservation under Article 16(4) should not exceed 50%. However, little relaxation was permissible. The rules made under Article 309 of the Constitution could not be treated as an Act of Parliament or State Legislature. E

8Copy pinpoint8. G.O.Ms. No.3 dated 10.1.2000, validity of which is questioned, reserved all posts in the educational institutions within the scheduled areas in favour of the local Scheduled Tribes. The order is extracted hereunder:

F “Whereas, under sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India, the Governor of Andhra Pradesh may by public notification direct that any particular Act of Parliament or of Legislature of the State shall not apply to the Scheduled Areas or any part thereof in the State or shall apply to a scheduled area or any part thereof subject to specified exceptions G and modifications;

2. AND WHEREAS, in G.O.Ms.No.275, Social Welfare Department dated 5.11.1986, a notification has been issued exercising the powers conferred under sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India H

CHEBROLU LEELA PRASAD RAO & ORS. v. 45 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

directing that the posts of teachers in the Educational Institutions A in the Scheduled Areas of State shall be filled in only by the local members of the Scheduled Tribes;

3. AND WHEREAS, the Andhra Pradesh Administrative Tribunal in its order dated 25.8.1989 in R.P.Nos.6377 and 6379 of 1988 quashed the orders issued in G.O.Ms.No.275, Social Welfare B Department dated 5.11.1986 on the ground that the notification issued under sub-paragraph (1) of paragraph 5 of the Fifth Scheduled to the Constitution of India does not reflect the existence of either a State or a Central Legislation referable for issuing such notification; C

4. AND WHEREAS, the Division Bench of the High Court of Andhra Pradesh in its judgement dated 20-8-1997 in Writ Appeal No.874 of 1997 filed by the Project Officer, I.T.D.A., Rampachodayaram, East Godavari District, directed to continue the petitioners respondents in their respective posts of teachers without any break as temporary employees until replaced by the qualified local tribals as and when such tribals are available to fill up those posts;

5. AND WHEREAS, the Andhra Pradesh Administrative Tribunal subsequentlywhile disposing of O.A.No.4598/97 in its order dt.22.9.1997 directed the respondents to follow the statutory rules while making recruitment to the posts of Secondary Grade Teachers and also Telugu Pandits, Grade. I in Agency Areas without taking into consideration of the orders issued in G.O.Ms.No.275, Social Welfare Department, dated 5.11.1986.

6. AND WHEREAS, the Supreme Court of India while allowing F Civil Appeal No.6437/98 in its order dated 18th December 1998, set aside the orders of the Andhra Pradesh Administrative Tribunal on the ground that the State withdraw the appeals arising out of the S.L.P. Nos.14562-63 of 1989:

7. AND WHEREAS, the Government considers that rule 4 (b) of G the Andhra Pradesh School Educational Subordinate Service Rules, 1992 and rule 22A of the Andhra Pradesh State and Subordinate Service Rules, 1996 shall be modified to the extent that only Scheduled Tribe Women shall be appointed in Scheduled Areas against 33 1/3% reservation in respect of direct recruitment; H

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A 8. AND WHEREAS, the consultation of the Tribes Advisory Council has been made as required under sub-paragraph (5) of paragraph 5 of the Fifth Schedule to the constitution of India.

9Copy pinpoint9. AND WHEREAS, the Government of Andhra Pradesh in order to strengthen the educational infrastructure in the Scheduled Areas, B to promote educational development of Tribals, to solve the phenomenal absenteeism of Teachers in the Schools situated in Scheduled Areas and with a view to protect the interests of local tribals have decided to reserve the posts of teachers in favour of local Scheduled Tribes candidates;

10Copy pinpoint10. AND WHEREAS, the Government considered to re-issue the said orders retrospectively from 5.11.1986 keeping in view the provisions of sub-paragraph (1) of paragraph 5 of Fifth Schedule to the Constitution;

11Copy pinpoint11. The following notification will be published in part-IV-B Extraordinary issue of the Andhra Pradesh Gazette, dated D 10.1.2000. NOTIFICATION In exercise of the power conferred by subparagraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India and E in Supersession of the notification issued in G.O.Ms.No.275, Social Welfare Department, dated the 5th November 1986, as subsequently amended in G.O. Ms. No.73, Social Welfare Department, dated the 25th April 1988, the Governor of Andhra Pradesh hereby directs that sections 78 and 79 of the Andhra Pradesh Education Act, 1982 (Act 1 of 1982) and sections 169, F 195 and 268 of the Andhra Pradesh Panchayat Raj Act, 1994 (Act 13 of 1994) and rule 4 (a) of the Andhra Pradesh School Educational Subordinate Service Rules issued in G.O.Ms.No.538 Education (Ser. II) Department, dated the 20th November 1998 and rule 22 and 22A of the Andhra Pradesh State and Subordinate G Service Rules, 1996 and any other rules made in this regard shall apply to the appointment of posts of teachers in schools situated, in the Scheduled areas in the State subject to the modification that all the posts of teachers in the Schools situated in Scheduled Areas in the State of Andhra Pradesh shall be filled in by the local Scheduled Tribe candidates only out of whom 33 1/3% shall H women.

CHEBROLU LEELA PRASAD RAO & ORS. v. 47 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

EXPLANATION:- For the purpose of this notification, the ‘Local A Scheduled Tribe Candidate’ means, the candidate belonging to the Scheduled Tribes notified as such under article 342 of the Constitution of India and the candidates themselves or their parents have been continuously residing in the scheduled areas of the Districts in which they are residents till to date since the 26th B January 1950.” (emphasis supplied)

9. In the notification various provisions have been mentioned. Section 78 of the A.P. Education Act, 1982 provides for the constitution of educational service. It confers power upon the Governor to make C rules to regulate the classification, methods of recruitment, conditions of service, pay and allowances and discipline and conduct of the members of the educational service. Section 79 inter alia deals with dismissal, removal, reduction in rank and suspension of the employees of private institutions. Section 169 of the A.P. Panchayat Raj Act, 1994 deals with creation of the posts of officers and employees of the Mandal Parishad, D the method of recruitment and conditions of service. Section 195 of the A.P. Panchayat Raj Act, 1994, provides for creation of posts of officers and employees of Zilla Parishad, the method of recruitment, conditions of service, etc. Section 268 of the said Act empowers the Government to make rules. E

10. The Andhra Pradesh State and Subordinate Service Rules, 1996 referred to in the notification were made by the State in exercise of the power conferred under proviso to Article 309 of the Constitution of India. Rule 22 of the Andhra Pradesh State and Subordinate Service Rules, 1996 provides for reservation. Rule 22 is extracted hereunder: F “Special Representation (Reservation): (1) Reservation may be made for appointments to a service, class or category in favour of Scheduled Castes, Scheduled Tribes, Backward Classes, Women, Physically handicapped, Meritorious Sportsman, Ex-Servicemen and such other categories, as may be prescribed by the Government G from time to time, to the extent and in the manner specified hereinafter in these rules or as the case may be, in the special rules. The principle of reservation as hereinafter provided shall apply all appointments to a service, class, or category.

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A (i) by direct recruitment, except where the Government by a General or Special Order made in this behalf, exempt such service, class or category; (ii) otherwise than by direct recruitment where the special rules lay down specifically that the principle reservation in so far as it B relates to Scheduled Castes and Scheduled Tribes only shall apply to such services, class, or category to the extent specified therein. (2)(a) The unit of appointments for the purpose of this rule shall be one hundred vacancies, of which, fifteen shall be reserved for scheduled for Scheduled Castes, six shall be reserved for Scheduled C Tribes, twenty-five shall be reserved for the Backward Classes and the remaining fifty-four appointments shall be made on the basis of open competition and subject to Rule 22-A of these rules. (e) Appointments under this rule shall be made in the order of rotation specified below in a unit of hundred vacancies. D Rule 22-A: Women reservation in appointments: Notwithstanding anything contained in these rules or special rules or Ad hoc Rules: (1) In the matter of direct recruitment to posts for which women are better suited than men, preference shall be given to women: Provided that such absolute preference to women shall not result E in total exclusion of men in any category of posts. (2) In the matter of direct recruitment to posts for which women and men are equality suited, there shall be reservation to women to an extent of 33 1/3 % of the posts in each category of Open Competition, Backward Classes (Group-A), Backward Classes F (Group-B), Backward Classes (Group-C), Backward Classes (Group-D), Scheduled Castes, Scheduled Tribes and Physically Handicapped and Ex-Servicemen quota. (3) In the matter of direct recruitment to posts which are reserved exclusively for being filled by women, they shall be filled by women G only.” Six per cent reservation has been provided in the State for Scheduled Tribes.

11. The A.P. Regulation of Reservation and Appointment to Public H Services Act, 1997, was enacted to ensure that the reservation mandated

CHEBROLU LEELA PRASAD RAO & ORS. v. 49 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

under Rule 22 is followed scrupulously. The Act intended to punish the A officers for violation of the rules of reservation. The Act did not provide any percentage of the reservation to the Scheduled Castes, Scheduled Tribes, and the backward classes. The reservations were provided under Rules 22 and 22A of the Rules framed under Article 309. ARGUMENTS B

12Copy pinpoint12. It was submitted by Mr. C.S.N. Mohan Rao, Mr. G. Ramakrishna Prasad and Mr. G.V.R. Choudhary, learned counsel and other learned counsel for the appellants that the limited legislative power is conferred on the Governor to modify the existing legislation made by the Parliament or the State legislature under Para 5(1) of the Fifth C Schedule to the Constitution. The power to make regulation was conferred under Para 5(2) of Schedule V. Under Para 5(1), there is no such legislative power. The earlier G.O.Ms. of 1986 was quashed. After that, the appeal preferred in this Court was withdrawn, and fresh G.O. was issued, again perpetuating the illegality by providing a 100% reservation. D

13Copy pinpoint13. Learned counsel for the appellants argued that Article 371-D of the Constitution contains special provisions concerning the State of Andhra Pradesh, which has now been amended for Andhra Pradesh as well as Telangana. After re-organisation of the States, the Article has been amended in its application to Andhra Pradesh as well as Telangana. Article 371D was promulgated given the geographical disparities in the arena of public employment in the State of Andhra Pradesh as candidates from certain districts were capturing a disproportionately large number of posts, as such by way of the Presidential Order issued under the said provisions, local cadres were created for different parts of the State. The Presidential Order provided for reservation on district/zonal basis for different posts. A district/zone as the case may constitute a local area. A district is a unit for teachers, and all the posts have been ordered to be filled by scheduled tribe candidates in the scheduled areas in several districts.

14Copy pinpoint14. Learned counsel for the appellants argued that as per the G Presidential Order issued under Article 371D, aspiring candidates could not apply outside the district or zone, as the case may be. Thus, the incumbents cannot apply outside their districts where they are residing. Their chances of obtaining public employment as against the posts of teachers have been taken away. Thus, the G.O. transgresses the H

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A Presidential Order issued under Article 371-D of the Constitution as such the same is unconstitutional and could not prevail.

15Copy pinpoint15. Learned counsel for the appellants further argued that providing 100% reservation is not permissible because of the catena of decisions rendered by this Court, to be referred later. Learned counsel vehemently B argued that it is an unfortunate reality that the law-makers are resorting to reservations on political basis catering to vote-bank, thereby ignoring the constitutional mandate to which they owe allegiance. The reservation so provided is against the wishes of the founding fathers of the Constitution. The reason employed of chronic absenteeism in the schools, could not have been made the fulcrum justifying 100% reservation. Merit C has been ignored and whittled down. The noble profession of teaching cannot be demeaned. There cannot be a compromise with the standard of education in the garb of cent percent reservation, and merit is a casualty. It tantamounts to reverse discrimination. It cannot be said to be a case of classification, but it is a case of reservation. It is highly D unfair and unreasonable action. The Constitution of India does not permit 100% reservation in respect of any particular class or category to the total exclusion of others. Reservation set out under Article 16 should not exceed the limit of 50%.

16Copy pinpoint16. The G.O. would be counter-productive to the aim of the E Constitution in providing protective legislation, and the main thrust of the reservation is to bring in the disadvantaged classes into the mainstream of the society at large. The idea of the tribal students to be taught by tribal teachers in the scheduled areas is akin to compromising with the merit and quality of education and further put the tribal children at a disadvantage and segregate them from the mainstream. Regarding the language barrier, learned counsel argued that qualifications for teachers could be provided that they should know the local language, a resident of a district invariably knows the local language. In the impugned notification, no such aspect was mentioned.

17Copy pinpoint17. Learned counsel on behalf of the appellants further argued that Rules 22 and 22A of the Andhra Pradesh State and Subordinate Service Rules, 1996 provides for reservation framed under proviso to Article 309 of the Constitution. The legislature did not frame them. Thus, it could not have been amended or modified by the Governor in exercise of the power under Para 5(1) of Schedule V to the Constitution being subordinate legislation. That apart, it was argued that no new law could

CHEBROLU LEELA PRASAD RAO & ORS. v. 51 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

have been created within the realm of Para 5(1) of Schedule V. The A Acts mentioned in G.O.Ms. No.3/2000 did not deal with reservation. The Act of 1997, provided for the reservation, was not amended. Even by amending the same, 100% reservation could not have been provided.

18Copy pinpoint18. The classification created within the scheduled tribes to benefit only the candidates or their parents continuously residing in the scheduled areas since 26.1.1950 is arbitrary, illegal, and discriminatory vis-à-vis the scheduled tribes also, besides other categories. The executive order could not have provided the reservation. The legislation was imperative to provide for a 100% reservation. Testing the case on the anvil of the doctrine of basic structure is not germane as it is not a case set up that provisions under Para 5 of Schedule V are against the basic structure of the Constitution. The provisions of Para 5 of Schedule V are not questioned, but only the legality of the action taken thereunder. The right of judicial review is available in case of any action taken, which is per se illegal, arbitrary or violative of fundamental rights and sans any basis.

19Copy pinpoint19. Concerning the non-obstante clause, it was argued that the order under Para 5 of Schedule V could not have been issued in contravention of Article 371D.It contravened the Presidential order.

20Copy pinpoint20. Dr. Rajeev Dhawan, learned senior counsel appearing for the respondents, argued that the Constitution has a solicitude for scheduled castes and scheduled tribes under various provisions contained in Articles E 15 and 16 and the Directive Principles contained in Articles 37, 38, 47 and 51(A). There are special provisions carved out providing reservation to SCs/ STs; there is National Commission for Scheduled Tribes, Article 330 provides reservation of seats for SC/ ST in House of People, Article 332 provides reservation in State Assemblies, Article 335 provides to F consider the claim of SCs/STs to services, Article 338 provides for the constitution of National Commission for Scheduled Castes and Article 338A provides for the constitution of National Commission for Scheduled Tribes. Articles 339, 341, 342 and 334, are other provisions relating to SCs/ STs. Articles 343D and 343(T)(h) provide reservation for SC/ST in Panchayats. G

21Copy pinpoint21. Learned senior counsel further argued that India’s Constitution is symmetrical and spatial for SCs/STs. In that view, the scheduled areas are constituted under the provisions of Article 244 and Schedules V and VI. The Constitution creates special classification. Equality is a concept H

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A of anti-arbitrariness. The normal rule of 50% reservation can be relaxed in appropriate cases that have precisely been done by the Governor. Reservation can be made by executive order. Reservations cannot be termed to be anti-meritarian. He urged that the reservations were provided due to discrimination, disadvantage, and to share the State power. Elaborately referred to the decision in Indra Sawhney &Ors. v. Union B of India &Ors., (1992) Supp. 3 SCC 217, it was argued that reservations could be rectified/revised. It is not permissible to sub-divide the SCs and STs. Article 16(4) aims at group backwardness. Strictly speaking, the constitution of a Commission to enquire is not necessary for providing further reservations, particularly for scheduled tribes in the scheduled areas. The scope of judicial review is limited in such matters. He referred to various dictums to be adverted to later.

22Copy pinpoint22. Dr. Rajeev Dhawan, learned senior counsel, lastly argued that G.O.Ms. No.3/2000 is constitutionally valid, and the Court may, if so advised, issue directions to the States to maintain oversight. The purposes of Article 371D and Para 5 of Schedule V are entirely different. He further argued that to trickle down the necessary benefits, the remedy lies in following what is inelegantly called the “bottoms up” approach. The malady can be addressed by empowering Gram Sabhas, ensuring the right to information, and strengthening its implementation. Learned senior counsel alternatively argued that in case this Court concludes that the G.O. is to be quashed, the appointments made should not be disturbed.

23Copy pinpoint23. Shri R. Venkataramani, learned senior counsel appearing for the State of Andhra Pradesh, argued that the scheme of Schedule V, as a whole, deserves to be dealt with on a special constitutional footing, that is an exclusive constitutional enclave, free in its ambit to ensure the promotion of the interests, concerns and the development of scheduled areas. Paras 2 and 5 of the Fifth Schedule constitute its essence. Para 2 enacts limitations on the executive power of the State concerning the scheduled areas. Para 5 is a composite and particular species of the enabling power, conferring on the Governor, legislative, and administrative powers. The legislative and administrative powers run seamlessly. For instance, the power under clause (1) of Para 5 to extend a Central or State legislation to the scheduled area, “subject to exceptions and modifications,” confer a power to amend the legislation. The power under clauses (1) and (2) operates in distinct fields to achieve distinct purposes, each of them wide in their way. The object to be achieved under clause H

CHEBROLU LEELA PRASAD RAO & ORS. v. 53 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

(1) is to evaluate and assess the relevance, fitness, or inappropriateness A of any law in their application to scheduled areas, the domain of policy with considerable latitude to bring into force with modifications and exceptions any law.

24Copy pinpoint24. Shri R. Venkataramani, learned senior counsel further argued that the scheduled areas and the tribes constitute a special class. This B special homogenous class can always be dealt with on a special basis. The G.O. was not issued to favour the local scheduled tribes or to discriminate against others intentionally. It was passed to advance the educational interests of the scheduled areas, even if it otherwise impinges upon the claims under Article 14 or 16(1), cannot be faulted. Even if the G.O. advances a class interest, it cannot be subjected to scrutiny under C Articles 14 and 16(1).

25Copy pinpoint25. Shri R. Venkataramani further argued that there is no conflict between Article 371D and Schedule V. The two operate in distinct fields and achieve different purposes. The socio-economic experiments drafted by the legislatures, and in this case by the Governor, cannot be subjected to judicial scrutiny. It is wrong to suggest that the non-obstante clause in Article 371-D can annul the non-obstante clause in Para 5 of the Fifth Schedule. Firstly, the two constitutional provisions operate in distinct domains. Article 371-D was not enacted to be a superimposition on Schedule V. Secondly, it is well settled that if the object and purpose of legislation or provisions with respective non-obstante clauses are distinct, the Court would not see any conflict.

26Copy pinpoint26. Shri R. Venkataramani, learned senior counsel, also argued that Schedule V is a complete Code by itself. It is not a case of reservation at all. It is a classification made to ensure that the schools in the scheduled areas function and promote the educational interest of the tribal populace. The Governor took cognizance of the general non-availability of teachers. The notification by prescribing that the Scheduled Tribe teachers of the local areas should be the exclusive component of the teaching element was looking at the local scheduled tribe teacher as the best possible tool for ensuring the educational interest of the scheduled areas. Learned G senior counsel has referred to various decisions, to be adverted later.

27Copy pinpoint27. Learned senior counsel further pointed out that the scheduled area is extended over 31,485 sq. km. which is about 11% of the total area of the State with more than 5938 villages distributed in Srikakulam, H

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A Vizianagaram, Visakhapatnam, East Godavari, West Godavari, Khammam, Warangal, Adilabad and Mahaboobnagar Districts. Scheduled Tribe students are at a disadvantageous position. The non-attendance of teachers was more in the scheduled areas, so to provide the facility of teaching, classification has been made. It cannot be said to be a case of providing reservations. The Government of Andhra Pradesh, Department B of Tribal Welfare, has established various categories of educational institutions to cater to the needs of Scheduled Tribes children in the State.

28Copy pinpoint28. Learned senior counsel further submitted that the Government of Andhra Pradesh, Department of Tribal Welfare, established various categories of educational institutions to cater to the needs of Scheduled Tribes children in the State, such as GurukulaPathasalas, Ashram schools, and residential, educational institutions, and the method of appointment of the local tribe has yielded good results.

29Copy pinpoint29. Shri B. Adinarayana Rao, learned senior counsel appearing for the State of Telangana, pointed out the history of scheduled areas Ganjam and Vizagapatnam. The Act of 1839 declared agency areas of Madras Presidency, providing for separate administration of tribals/agency areas. In 1874, the Scheduled Districts Act, XIV was passed, which had a schedule in which the territories were mentioned, inhabited by tribals as such. Rules were issued for administering the areas by the Governor General-in-Council to the exclusion of ordinary laws. The Government of India Act, 1919, had made “wholly excluded and partially excluded areas for reform” and kept them under the administration of Governor General-in-Council, with a separate application of laws. The Government of India Act, 1935, had extended the same. Thus, historically, the scheduled areas were governed by special laws. They cannot be compared with areas generally administered by the Act of legislatures. Special provisions have been made in Schedule V. The order issued by the Governor has to be treated as legislation. The application of laws is one of the recognised forms of legislation. The order of Governor can only be tested on the parameters of competence and violation of the Constitution. It cannot be tested on the touchstone of ideal norms. It achieves the purpose of Article 46 of the Constitution.

30Copy pinpoint30. Shri B. Adinarayana Rao, learned senior counsel, has further argued that forests or hills separate scheduled areas from other areas. H Notified tribes inhabit them. There are some non-tribals in the scheduled

CHEBROLU LEELA PRASAD RAO & ORS. v. 55 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

areas. In spite of their stay/residence, the non-tribals cannot acquire by sale, purchase, lease, or otherwise, the lands in the scheduled areas and legislations imposing such restrictions have been held to be constitutional by this Court in various decisions. The tribal customs, culture, traditions, and personal laws need to be protected and preserved. They speak their dialect in their habitations. Due to inaccessibility and lack of facilities, the teachers appointed in scheduled areas are not attending the schools, leading to chronic absenteeism. The experiment has resulted in fulfilling the desired objectives. There has been a significant increase in literacy among tribals. There is no repugnancy with the Presidential Order issued under Article 371D. Article 371D(10) provides for the non-obstante clause to make the provisions immune from challenge under Articles 14 and 16 of the Constitution of India. The provisions made in Para 5 of Schedule V have to be viewed on a similar anvil.

31Copy pinpoint31. Shri Shivam Singh, learned counsel appearing on behalf of some of the respondents, argued that the basic structure doctrine is inapplicable, the original constitutional text must not be employed to test the impugned action. Schedule V under Article 244(1) of the Constitution is part of the original text. Hence, it must not be tested on the touchstone of the basic structure violation. He argued by referring to the decisions of this Court that the constitutional amendments post-1973 can be struck down if they violate the basic structure doctrine and not the original text of the Constitution. The non-obstante clause in Para 5(1) Schedule V continues to hold and occupy the field. The rigours of the basic structure doctrine may hit Article 371-D but cannot affect Schedule V. Article 14 cannot be used to defeat intendment of the non-obstante clause of Schedule V. F

32Copy pinpoint32. Shri Shivam Singh, learned counsel, further argued that in case of conflict between non-obstante clauses, as far as possible, they must be harmoniously construed. The provision enacted later prevails over the one enacted earlier. If the latter provision is found to be generic as against the earlier provision, then the earlier provision has to prevail. G

33Copy pinpoint33. Learned counsel has further canvassed that as the Governor has the power to frame the regulations, the power extends to subordinate legislation also. Subordinate legislation has to be treated as part of the legislation itself. Regulations must be treated as part of the statute itself. H

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A In the power to modify and create exceptions in exceptional circumstances to provide a 100% reservation is permissible. There is minimal scope for judicial review. The notification contemplated a classification under Article 16(1) not a reservation under Article 16(4) issued to provide impetus to scheduled areas in the field of education; to B strengthen educational infrastructure, to promote the educational development of tribals; to prevent phenomenal absenteeism of teachers in the schools in the scheduled areas from teaching tribals. The conditions of eligibility and cut-off date to avail the benefit of reservation are reasonable to further strengthen the educational infrastructure development and other problems faced in the area. C In Re: Question No.1: What is the scope of Para 5(1) of Schedule V of the Constitution of India?;and Question No.1(a): Does the provision empower the Governor to make a new law?

34Copy pinpoint34. The Fifth Schedule finds reference in Article 244 of the Constitution of India. Article 244 deals with the administration of scheduled areas and tribal areas. It is provided that the provisions of Schedule V shall apply to the administration of scheduled areas. Article 244 is extracted hereunder: “Article 244. Administration of Scheduled Areas and Tribal Areas.—(1) The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam Meghalaya, Tripura, and Mizoram. (2) The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the State of Assam, Meghalaya, F Tripura and Mizoram.”

35Copy pinpoint35. Article 244 excludes Assam, Meghalaya, Tripura, and Mizoram from Schedule V, and they are included as per Article 244(2) in Schedule VI. Schedule V in extenso is extracted hereunder:

G “FIFTH SCHEDULE [Article 244(1)] PROVISIONS AS TO THE ADMINISTRATION AND CONTROL OF SCHEDULED AREAS AND SCHEDULED TRIBES H

CHEBROLU LEELA PRASAD RAO & ORS. v. 57 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

PART A A GENERAL “1. Interpretation.—In this Schedule, unless the context otherwise requires, the expression ‘State’ does not include the States of Assam, Meghalaya, Tripura, and Mizoram. B

2. Executive power of a State in Scheduled Areas.—Subject to the provisions of this Schedule, the executive power of a State extends to the Scheduled Areas therein.

3. Report by the Governorto the President regarding the administration of Scheduled Areas.—The Governor of each C State having Scheduled Areas therein shall annually, or whenever so required by the President, make a report to the President regarding the administration of the Scheduled Areas in that State and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas. D PART B ADMINISTRATION AND CONTROL OF SCHEDULED AREAS AND SCHEDULED TRIBES

4. Tribes Advisory Council.—(1) There shall be established in each State having Scheduled Areas therein and, if the President E so directs, also in any State having Scheduled Tribes but not Scheduled Areas therein, a Tribes Advisory Council consisting of not more than twenty members of whom, as nearly as may be, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State: F Provided that if the number of representatives of the Scheduled Tribes in the Legislative Assembly of the State is less than the number of seats in the Tribes Advisory Council to be filled by such representatives, the remaining seats shall be filled by other members of those tribes. G (2) It shall be the duty of the Tribes Advisory Council to advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the State as may be referred to them by the Governor.

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A (3) The Governor may make rules prescribing or regulating, as the case may be, (a) the number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof; B (b) the conduct of its meetings and its procedure in general; and (c) all other incidental matters.

5. Law applicable to Scheduled Areas.—(1) Notwithstanding anything in this Constitution, the Governor may by public notification C direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect. D (2) The Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. In particular and without prejudice to the generality of the foregoing power, such regulations may— E (a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area; (b) regulate the allotment of land to members of the Scheduled Tribes in such area; F (c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area. (3) In making any such regulation as is referred to in sub- paragraph (2) of this paragraph, the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question. (4) All regulations made under this paragraph shall be submitted forthwith to the President and, until assented to by him, shall have no effect.

CHEBROLU LEELA PRASAD RAO & ORS. v. 59 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

(5) No regulation shall be made under this paragraph unless the Governor making the regulation has, in the case where there is a Tribes Advisory Council for the State, consulted such Council. PART C SCHEDULED AREAS B

6. Scheduled Areas.—(1) In this Constitution, the expression ‘Scheduled Areas’ means such areas as the President may by order declare to be Scheduled Areas. (2) The President may at any time by order— (a) direct that the whole or any specified part of a C Scheduled Area shall cease to be a Scheduled Area or a part of such an area; (aa) increase the area of any Scheduled Area in a State after consultation with the Governor of that State;] D (b) alter, but only by way of rectification of boundaries, any Scheduled Area; (c) on any alteration of the boundaries of a State or on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of, a E Scheduled Area; (d) rescind, in relation to any State or States, any order or orders made under this paragraph, and in consultation with the Governor of the State concerned, make fresh orders redefining the areas which are to F be Scheduled Areas, and any such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper, but save as aforesaid, the order made under sub-paragraph (1) of this paragraph shall not be varied by any subsequent order. G

PART D AMENDMENT OF THE SCHEDULE

7. Amendment of the Schedule.—(1) Parliament may from time to time by law amend by way of addition, variation or repeal H

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A any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such Schedule as so amended. (2) No such law as is mentioned in sub-paragraph (1) of this paragraph shall be deemed to be an amendment of this B Constitution for the purposes of article 368.”

36Copy pinpoint36. The State can exercise executive power in scheduled areas. However, the same is subject to the provisions of the Schedule. Para 3 of Schedule V provides for the continuous interplay between the Governor and the President. The Governor has to send an Annual Report or at any C time whenever so required by the President. The Governor is bound to report to the President regarding the administration of the scheduled areas, and in the exercise of executive power, the Union Government can issue directions to State as to the administration of the scheduled areas.

37Copy pinpoint37. The object of para 5 of Schedule V is to establish an egalitarian society and to ensure socio-economic empowerment to the Scheduled Tribes as held in Samatha v. State of A.P. &Ors., (1997) 8 SCC 191 thus: “71. Thus, the Fifth and Sixth Schedules, an integral scheme of E the Constitution with direction, philosophy and anxiety is to protect the tribals from exploitation and to preserve valuable endowment of their land for their economic empowerment to elongate social and economic democracy with liberty, equality, fraternity and dignity of their person in our political Bharat.”

38Copy pinpoint38. Para 4 of Schedule V to the Constitution of India provides for the formation of Tribes Advisory Council for administration and control of the scheduled areas and scheduled tribes. Para 4(2) enables the Advisory Council to advise on such matters pertaining to the welfare and advancement of the scheduled tribes in the State as may be referred to them by the Governor. The Governor has the power to make rules, G regulations as to the number of members of the Tribes Advisory Council, the mode of their appointment, conduct of meetings, and other incidental matters.

39Copy pinpoint39. Para 5 of Schedule V deals with the law applicable to the scheduled areas. It containsa non-obstante clause and authorises the H Governor to issue a notification to the effect that any particular Act of

CHEBROLU LEELA PRASAD RAO & ORS. v. 61 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

the Parliament or of the State Legislature shall not apply to a scheduled area or any part thereof. It also empowers the Governor to create exceptions and modifications as he may specify in the notification concerning the applicability of such Act of Parliament or legislature of the State. The Governor is empowered to issue notification giving it retrospective effect. It is apparent that the law contained in the Act can be modified by the Governor or can be excluded in its application from the scheduled area or any part of it. Thereupon such Act, hence, of the Parliament or the State Legislature can be applied with exceptions and modifications to the scheduled area. Para 5(1) confers power upon the Governor not concerning the only exclusion of Act of Parliament or the State but to modify or create exceptions. C (a) Para 5(1) of Schedule V does not confer upon Governor power to enact a law but to direct that a particular Act of Parliament or the State Legislature shall not apply to a scheduled area or any part thereof or shall apply with exceptions and modifications, as may be specified in the notification. The Governor is not authorised to enact a new Act D under the provisions contained in para 5(1) of Schedule V of the Constitution. Area reserved for the Governor under the provisions of para 5(1) is prescribed. He cannot act beyond its purview and has to exercise power within the four corners of the provisions. (b) Para 5(2) of Schedule V deals with the power of the Governor E to make regulations for the peace and good government in a scheduled area of a State. The Governor has to obtain the advice of the Tribes Advisory Council in the matters pertaining to Para 5(2), if it has been constituted. The Governor is expressly authorised to prohibit or restrict the transfer of land by any member of scheduled tribes and also regulate the allotment of land to the members of the Scheduled Tribes in the F Scheduled Areas. Para 5(3) provides that while making any such regulations as mentioned in Para 5(2), the Governor has the power to repeal or amend any Act of Parliament or the legislature of the State or any existing law which is for the time being applicable to the area in question, but that is for peace and good governance of the scheduled G area. The regulation made by the Governor to be effective is required to be assented by the President. Prior assent of the President is mandatory for regulation to be put into effect. There is a further rider on the regulatory power of the Governor provided by Para 5(5). In case Tribes Advisory Council has been constituted before making any regulation, H

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A the Governor is duty-bound to consult such Council. No regulation can be made without consultation with the Council in case it has been formed.

40Copy pinpoint40. The Act of Parliament or the appropriate legislature applies to the scheduled areas. The Governor has the power to exclude their operation by a notification. In the absence thereof, the Acts of the legislature shall extend to such areas. In Jatindra v. Province of Bihar, (1949) FLJ 225, it was held that the power of the Governor under para 5 is a legislative power and Governor is empowered to change or modify the provisions of the Act or the section as he deems fit by way of issuing a notification. The power under para 5(1) is limited to the application of the Governor’s decision to apply an Act or making modification or creating exceptions. Though the power is legislative to some extent, that is confined to applicability, modification, or creating exceptions concerning the Act of the Parliament or the State. While para 5(2) confers the power of independent legislation, the Governor has plenary power of framing regulations for the peace and good governance of a scheduled area. He D is the repository of faith to decide as to the necessity. The Governor is empowered by para 5(3) to repeal or amend any Act of Parliament or State Legislature,following the procedure prescribed therein, in exercise of making regulations as provided under para 5(2) of Schedule V. The aspect of power was considered in Ram Kirpal Bhagat and Ors. v. The State of Bihar, (1969) 3 SCC 471 thus: E “21. The second question which falls for consideration is whether the Bihar Regulation I of 1951 is in excess of the Governor’s powers. The contentions were: first, that the Regulation I of 1951 could not at all have been made; secondly, that Regulations deal with the subject-matter and did not mean power to apply law and F thirdly, the power to extend a law passed by another legislature was said to be not a legislative function, but was a conditional legislature. The legislation, in the present case, is in relation to what is described as Scheduled Areas. The Scheduled Areas are dealt with by Article 244 of the Constitution and the Fifth Schedule G to the Constitution. Prior to the Constitution, the excluded areas were dealt with by Sections 91 and 92 of the Government of India Act, 1935. The excluded and the partially excluded areas were areas so declared by order in Council under Section 91 and under Section 92. No act of the Federal Legislature or of the Provincial Legislature was to apply to an excluded or a partially excluded H

CHEBROLU LEELA PRASAD RAO & ORS. v. 63 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

area unless the Governor by public notification so directed. Sub- A section (2) of Section 92 of the Government of India Act, 1935 conferred power on the Governor to make regulations for the peace and good government of any area in a Province which was an excluded or a partially excluded area and any regulations so made might repeal or amend any Act of the Federal Legislature B or the Provincial Legislature or any existing Indian law which was for the time being applicable to the area in question. The extent of the legislative power of the Governor under Section 92 of the Government of India Act, 1935 in making regulations for the peace and good government of any area conferred on the Governor in the words of Lord Halsbury “an utmost discretion of enactment for the attainment of the objects pointed to.” (See Riel v. Queen, LR 10 AC 657 at 658)). In that case the words which fell for consideration by the Judicial Committee were “the power of the Parliament of Canada to make provisions for the administration, peace, order and good government of any territory not for the time being included in any province”. It was contended that if any legislation differed from the provisions which in England had been made for the administration, peace, order and good government then the same could not be sustained as valid. That contention was not accepted. These words were held to embrace the widest power to legislate for the peace and good government for the area in question.

22. The Fifth Schedule to the Constitution consists of 7 paras and consists of Parts A, B, C and D. Para 6 in Part C deals with Scheduled Areas as the President may by order declare and there is no dispute in the present case that the Santhal Parganas falls within the Scheduled Areas. Para 5 in the Fifth Schedule deals with laws applicable to Scheduled Areas. Sub-para 2 of para 5 enacts that the Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. Under sub-para 3 of para 5, the Governor may repeal or amend any Act of Parliament or of the legislature of the State or any existing law which is for the time being applicable to the area in question. It may be stated that a contention was advanced by counsel for the appellants that Section 92 of the Government of India Act, 1935 was still in operation and the Governor could only act under that section. This contention is H

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A utterly devoid of any substance because Section 92 of the Government of India Act, 1935 ceased to exist after repeal of the Government of India Act, 1935 by Article 395 of the Constitution. It was contended that the power to make regulations did not confer power on the Governor to apply any law. It was said that under Section 92 of the Government of India Act, 1935 the Governor B could do so but under the Fifth Schedule of the Constitution the Governor is not competent to apply laws. This argument is without any merit for the simple reason that the power to make regulations embraces the utmost power to make laws and to apply laws. Applying law to an area is making regulations which are laws. C Further the power to apply laws is inherent when there is a power to repeal or amend any Act, or any existing law applicable to the area in question. The power to apply laws is really to bring into legal effect sections of an Act as if the same Act had been enacted in its entirety. Application of laws is one of the recognised forms of legislation. Law can be made by referring to a statute or by citing a statute or by incorporating a statute or provisions or parts thereof in a piece of legislation as the law which shall apply.

23. It was said by Counsel for the appellants that the power to apply laws under the Fifth Schedule was synonymous with conditional legislation. In the present case, it cannot be said that the Bihar Regulation I of 1951 is either a piece of delegated legislation or a conditional legislation. The Governor had full power to make regulations which are laws and just as Parliament can enact that a piece of legislation will apply to a particular State, similarly, the Governor under para 5 of the Fifth Schedule can apply specified laws to a Scheduled area. The Bihar Regulation I of 1951 is an instance of a valid piece of legislation emanating from the legislative authority in its plenitude of power and there is no aspect of delegated or conditional legislation.” (emphasis supplied)

41Copy pinpoint41. In Hota Venkata Surya Sivarama Sastry and Anr. v. State of Andhra Pradesh, (1962) 2 SCR 535: AIR 1967 SC 71, the question came up for consideration as to the power to apply the laws under para 5(2). This Court opined that the power to repeal or amend is legislative, and the regulations made in exercise of this power, cannot be said to be delegated or conditional legislation. This Court held:

CHEBROLU LEELA PRASAD RAO & ORS. v. 65 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

“(11) It was next contended that Regulation IV of 1951 was invalid as having outstepped the limits of the legislation permitted by Paras 5(1) and (2) of the Fifth Schedule to the Constitution. It was said that if the Governor desired to enact a law with retrospective effect it must be a law fashioned by himself, but that if he applied to the Scheduled areas a law already in force in the State, he could not do so with retrospective effect. Reduced to simple terms, the contention merely amounts to this that the Governor should have repeated in this Regulation the terms of the Abolition Act but that if he referred merely to the title of the Act he could not give retrospective effect to its provisions over the area to which it was being applied. It is obvious that this contention was correctly negatived by the High Court.”

42Copy pinpoint42. Reliance has been placed on the decision in Edwingson Bareh v. State of Assam and Ors., (1966) 2 SCR 770 in which the validity of the notification issued on 23.11.1964 was in question. By the notification, the Governor of Assam was pleased to create a new Autonomous District D to be called the Jowai District by excluding the Jowai Sub-Division of the United Khasi-Jaintia Hills District with effect from 1.12.1964 and altered the boundaries. The notification was issued by the Governor in the exercise of powers conferred on him by paragraph 1(3) of the Sixth Schedule. This Court observed: E “It cannot, however, be disputed that as a result of the modification made by the impugned notification, paragraph 20(2) has to be changed. Paragraph 20(2), as it originally stood, describes in detail the territories comprised in the United Khasi-Jaintia Hills District, and as a result of the impugned notification, the said description will have to be modified, because the said District has now been F split up into two Autonomous District. That, however, is a change consequent upon the change made by the Governor by issuing the impugned notification in exercise of the powers conferred on him by para 1(3). In our opinion, where the Governor makes changes by virtue of the powers conferred on him by para. 1(3) (c), (d), G (e), (f) and (g), what follows is a change in the internal composition of the different items in Part A of the table. The exercise of the said powers does not change, and in the present case it has not changed, the total area comprised in Part A. What it purports to do is to change one item into two items of Autonomous Districts. H

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A Since the power to bring about this change is expressly conferred on the Governor by paragraph 1(3)(c), (d), (e), (f) and (g), it is not unreasonable to hold that the exercise of the said power should, as in the present case, lead to a consequential change in para 20(2). Such a change in para 20(2) is a logical corollary of the exercise of the power conferred on the Governor by para 1(3)(c), B (d), (e), (f) and (g).”

43Copy pinpoint43. In Samatha v. State of A.P. &Ors., (1997) 8 SCC 191, this Court held that the executive power under Article 298 and legislative power under Article 245 to dispose of Government property are subject to Para 5 of Schedule V. The relevant portion is extracted hereunder: C “85. It is true, as contended by Shri Choudhary, that the Constitution has demarcated legislative, executive and judicial powers and entrusted them to the three wings of the State; in particular the President/Governor of the State is to exercise the executive power in their individual discretion. It is not subject to legislative limitations to be done in accordance with rules of business. In particular, the President/Governor is entrusted with the executive power coextensive with the legislative power enumerated in the Seventh Schedule read with Article 245 of the Constitution. The executive power especially conferred by the Constitution like the pleasure tenure or the power of pardoning a convict are in our view, not apposite to the issue. The power of the executive Government in that behalf has wisely been devised in the Constitution and is not subject to any restriction except in accordance with the Constitution and the law made under Article 245 read with the relevant entry in the Seventh Schedule to the Constitution subject to the Fifth Schedule when it is applied to Scheduled Area. The power of the Government to acquire, hold and dispose of the property and the making of contracts for any purpose conferred by Article 298 of the Constitution equally is coextensive with the legislative power of the Union/State. However, Article 244(1) itself specifies that provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State except the excluded areas specified therein. The legislative power in clause (1) of Article 245 equally is “subject to the provisions of the Constitution” i.e. Fifth Schedule. Clause (1) of para 5 of Part B of the Fifth Schedule applicable to Scheduled H

CHEBROLU LEELA PRASAD RAO & ORS. v. 67 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

Areas, adumbrates with a non obstante clause that: A “Notwithstanding anything in the Constitution, in other words, despite the power, under Article 298, the Governor may, by public notification direct that any particular Act of Parliament or of the legislature of a State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any B part thereof in the State, subject to such exceptions and modifications as he may specify in the notification and any direction given under clause (1) of para 5, may be given so as to have retrospective effect.” The executive power of the State is, therefore, subject to the legislative power under clause 5(1) of the Fifth Schedule. Similarly, sub-para (2) thereof empowers the C Governor to make Regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. In particular and without prejudice to the generality of the foregoing power, such Regulations may regulate the allotment of land to members of the Scheduled Tribes in such area or may D prohibit or restrict the transfer of land under clause (a) by or among the members of the Scheduled Tribes in such areas. In other words sub-para 5(2) combines both legislative as well as executive power, clause 5(2)(a) and (c) legislative power and clause (b) combines both legislative as well as executive power. The word “regulation” in para 5(2)(b) is thus of wide import.” E (emphasis supplied) In Samatha (supra), it was held that mining leases could not have been granted to non-tribals in the Scheduled Areas even concerning land belonging to the Government. This Court in the aforesaid decision dealt with the prohibition on the transfer of immovable property situated F in Agency tracts by a person, whether or not such person is a member of Scheduled Tribes or a society composed solely of the members of the Scheduled Tribes or by a person including inter alia State Government or State Corporations. Transfer of Government land in Agency tracts by granting mining lease in favour of non-tribal persons was null and void. G In the said case, the tribals were granted patta in their favour for cultivation purposes, the said aspect made the entire difference, and the prohibition on lease came in the way of non-tribal, which was upheld by this Court. The decision is to operate in a different area. This Court upheld a similar restriction in Rajasthan Housing Board v. New Pink City Nirman Sahkari Samiti Ltd. and Anr., (2015) 7 SCC 601. H

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44Copy pinpoint44. There is no dispute with the abovesaid proposition concerning the protection of the transfer of land. Such provisions have been carved out, and they have been held to be constitutionally valid. More or less, similar provisions exist virtually in all the States. In various States, transactions that took place relating to land of Scheduled Tribes were statutorily annulled including decree or order of the court, and such B transactions have been declared to be void with retrospective effect and validity of the same was upheld by this Court. But the question here is not of the protection of the land. The idea behind protection of land is to protect tribals, as they are isolated, and in disadvantageous position socially as compared to non-tribals. Thus, protection has been conferred.

45Copy pinpoint45. In re Art. 143 of the Constitution of India and Delhi Laws Act (1912) etc., AIR 1951 SC 332, the Court considered the word ‘modify’ to mean alteration without radical transformation in the context in which modification was used,it did not involve any material alteration or substantial alteration. However, in the context of Article 370(1) of the D Constitution of India in Puranlal Lakhanpal v. President of India &Ors., AIR 1961 SC 1519, the power is given to the President to efface effect of any provision of law altogether in its application to the State of Jammu & Kashmir. The Court observed thatpower to modify should be considered in its widest possible amplitude. This Court further considered the word ‘modify’ in the Oxford English Dictionary, Vol. VI, to mean E inter alia “to make partial changes in”; to change (as object) in respect of some of its qualities; to alter or vary without radical transformation”. Similar is the word ‘modification,’ which means the action of making changes in an object without altering essential nature. The Court also observed that modify just means to alter or vary, extend, or enlarge thus: F “(4) But even assuming that the introduction of indirect election by this modification is a radical alteration of the provisions of Art. 81(1), the question still remains whether such a modification is justified by the word “modification” as used in Art. 370(1). We are here dealing with the provision of a Constitution which cannot G be interpreted in any narrow or pedantic sense. The question that came for consideration in In re Delhi Laws Act case,1951 SCR 747: (AIR 1951 SC 332), was with respect to the power of delegation to a subordinate authority in making subordinate legislation. It was in that context that the observations were made that the intention of the law there under consideration when it H

CHEBROLU LEELA PRASAD RAO & ORS. v. 69 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

used the word “modification” was that the Central Government A would extend certain laws to Part C States without any radical alteration in them. But in the present case we have to find out the meaning of the word “modification” used in Art. 370(1) in the context of the Constitution. As we have said already the object behind enacting Art. 370(1) was to recognise the special position B of the State of Jammu and Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify. We have already pointed out that the power to make exceptions implies that the President can provide that a particular provision of the C Constitution would not apply to that State. If therefore the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir, it seems that when he is also given the power to make modifications that power should be considered in its widest D possible amplitude. If he could efface a particular provision of the Constitution altogether in its application to the State of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word E “modification” in Art. 370(1) the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and Kashmir. In the Oxford English Dictionary (Vol. VI) the word “modify” means inter alia “to make partial changes in; to change F (as object) in respect of some of its qualities; to alter or vary without radical transformation”. Similarly the word “modification” means “the action of making changes in an object without altering its essential nature or character; the state of being thus changed; partial alteration”. Stress is being placed on the meaning “to alter or vary without radical transformation” on behalf of the petitioner; G but that is not the only meaning of the words “modify” or “modification”. The word “modify” also means “to make partial changes in” and “modification” means “partial alteration”. If therefore the President changed the method of direct election to indirect election he was in essence making a partial change or H

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A partial alteration in Art. 81 and therefore the modification made in the present case would be even within the dictionary meaning of that word. But, in law, the word “modify” has even a wider meaning. In “Words and Phrases” by Roland Burrows, the primary meaning of the word “modify” is given as “to limit” or “restrict” but it also means “to vary” and may even mean to “extend” or B “enlarge”. Thus in law the word “modify” may just mean “vary” i.e. amend; and when Art. 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify it means that he may vary (i.e. amend) the provisions of the C Constitution in its application to the State of Jammu and Kashmir. We are therefore of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word “modification” used in Art. 370(1) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Art. 370(1) only to such modifications as do not make any “radical transformation”. We are therefore of opinion that the President had the power to make the modification which he did in Art. 81 of the Constitution. The petition therefore fails and is hereby dismissed with costs.” The Governor is conferred the power to modify or create exceptions, is not in dispute. The power is wide but is confined to the Acts of the Parliament or the State legislature. The power of the Governor is not only extensive but also sui generis, and as the court has to defer to legislative wisdom in areas of social and economic experimentation, it also defers to the wisdom of the Governor in the exercise of his power under Para 5 of the Fifth Schedule.

46Copy pinpoint46. In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group & Ors., (2006) 3 SCC 434, the Court referred to the decision in Puranlal Lakhanpal (supra) and observed: “243. Yet again in Puranlal Lakhanpal v. President of India, (1962) G 1 SCR 688, it was stated: (SCR p. 693) “[T]he word ‘modification’ means ‘the action of making changes in an object without altering its essential nature or character …’.”

CHEBROLU LEELA PRASAD RAO & ORS. v. 71 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

47Copy pinpoint47. In Puranlal (supra), the Court observed that modification in A Article 370(1) must be given the widest effect in the context of the Constitution, and in that sense, it cannot include such limitations as do not make any radical transformation. In S.K. Gupta & Anr. v. K.P. Jain &Anr., (1979) 3 SCC 54, the term “modification” came up for consideration. The Court held that it would include the making of additions and omissions. In the context of Section 392, “modification” would mean addition to the scheme of compromise and/or arrangement or omission therefrom solely to make it workable. The court observed thus: “26. According to the definition, “modify” and “modification” would include the making of additions and omissions. In the context of Section 392, “modification” would mean addition to the scheme of compromise and/ or arrangement or omission therefrom solely for the purpose of making it workable. Reading Section 392 by substituting the definition of the word “modification” in its place, if something can be omitted or something can be added to a scheme of compromise by the Court on its own motion or on the application of a person interested in the affairs of the company for the proper working of the compromise and/or arrangement, we see no justification for cutting down its meaning by a process of interpretation and thereby whittle down the power of the Court to deal with the scheme of a compromise and/or arrangement for the purpose of making it workable in course of its continued supervision as ordained by Section 392(1).”

48Copy pinpoint48. Para 5(1) of Schedule V to the Constitution confers power upon the Governor to exclude law, which is applicable in a scheduled area. It also empowers the Governor to apply the same with exceptions and modifications as he deems fit. However, the power to exclude an area from applicability, modification, and to create exceptions in the law, which was applicable in the area, cannot be said to be at par to the regulation-making power conferred under para 5(2) of the said Rules. Meaning of the expressions ‘exception’ and ‘modification’ is as follows: “exception • n. a person or thing that is excepted or that does not follow a rule. Ø the action or state of excepting or being excepted.” “modification • n. the action of modifying. Ø a change made.” (Source: Concise Oxford English Dictionary, 10thEdn. Revised) H