– Shivam Singh and Harpreet Singh Gupta*
Schedule V and VI read with Article 244 of the Indian Constitution contain provisions for control and administration of Scheduled Tribes and Scheduled Areas. Paragraph 5(1) of Schedule V gives power to the Governor to apply with modification or exempt application of certain State/Central enactments in Scheduled Areas. Recently, in the case of Chebrolu Leela Prasad Rao & Ors. v. State of Andhra Pradesh & Ors. [Civil Appeal No. 3609 of 2002, Supreme Court of India], a five judge bench of the Hon’ble Supreme Court was hearing a challenge to Governor’s exercise of power under Paragraph 5(1) to issue a government order to reserve all teaching positions in schools in a part of a Scheduled Area only for Scheduled Tribes. In this case, a two-judge bench of the Hon’ble Supreme Court had referred to a larger bench questions inter alia regarding the scope of Paragraph 5(1) of Schedule V, and the inter-play of exercise of power under Paragraph 5(1) of V Schedule and Fundamental Rights under Part III of the Indian Constitution. The aim of this post is to shed light on these often ignored, yet crucial questions of constitutional interpretation.
I. Scope of Paragraph 5(1) of Schedule V to the Indian Constitution
Paragraph 5(1) of Schedule V begins with a non-obstante clause. It grants wide gubernatorial power to (a) make certain State/Central enactment(s) partially or completely inapplicable to the Scheduled Areas, and (b) make certain State/Central enactment(s) applicable with modifications as may be prescribed by the Governor in the notification.
The power granted to the Governor under Paragraph 5(1) is legislative in nature. Further, the Governor may in exercise of the power under Paragraph 5(1) completely change the whole Act or certain section(s) of the Act. The Governor, in making applicable such law, has the power to also make such application retrospective. There is no limitation under the Constitution as to the point of time from which the Governor can commence such retrospective operation. While Paragraph 5(1) grants absolute discretion to the Governor with regard to the aforementioned, it is clear from the language employed by the drafters of the Constitution that there is no power to make new laws under Paragraph 5(1) of Schedule V. This is unlike Paragraph 5(2), Schedule V of the Indian Constitution, where the Governor has been granted wide power to make regulations for the purpose of “peace and good government”.
II. Interplay of Schedule V and Part III of the Indian Constitution
A non-obstante clause or a clause stating ‘notwithstanding anything in this Constitution/Act’ is affixed at the beginning of a section as a device to give it an overriding effect over the provision(s) or the enactments mentioned in the clause. As mentioned earlier, Paragraph 5(1) of Schedule V begins with a non-obstante clause. At the same time, Article 13 of the Indian Constitution contains a clause which states that State shall not make any law that takes away rights guaranteed under Part III (Fundamental Rights) of the Indian Constitution. It further states that if any such law is made, the same shall be void. Further, both Article 13 and Paragraph 5(1) are part of the original text of the Indian Constitution.
In light of the above, a pertinent question that arises is: if the Governor in exercise of the power under Paragraph 5(1) makes a law for the benefit of Scheduled Tribes and it takes away any Part III right of non-Scheduled Tribes in a Scheduled Area, which amongst Schedule V and Part III will prevail? This question of what happens in case of a conflict between exercise of power under Paragraph 5(1) of Schedule V and Article 13 has never been raised before the Supreme Court and therefore, there is no authoritative decision on this crucial question. However, this question has come before High Courts and has led to conflicting decisions.
The Andhra Pradesh High Court in G Ramadass v. Union of India [(1971): 2 An.WR 261], and in Seepuri Nagabhushanam And Ors. v. Secretary to Government [AIR 1965 AP 332, ¶7] observed that any notification issued by the Governor under Paragraph 5(1) is valid even if it contravenes fundamental rights in light of the non-obstante clause. On the other hand, Bombay High Court in Mansing Surajsingh Padvi v. The State Of Maharashtra [(1968) 70 BOMLR 654, ¶ 69-70] has observed that Paragraph 5(1) of Schedule V does not, in any way, grant the power to the Governor to infringe on the fundamental rights of citizens in Scheduled Areas. The Bombay High Court observed that the non-obstante clause must be given a narrow interpretation such that it only refers to the provisions which come directly in conflict with granting the Governor the legislative power to apply certain enactments with modification or to not apply them, such as Article 245 of the Indian Constitution.
Further, the Supreme Court while dealing with a case involving a similar non-obstante clause in Article 371-F and its conflict with Article 13, held that existing laws under Article 371-F(k) (those which were immunized by the non-obstante clause) cannot be challenged on grounds of them being violative of Article 13 as the non-obstante clause in Article 371 will preclude any such attack.
The authors believe that since there is no authoritative pronouncement on this issue, it is crucial to look at the principles governing the situation where there are two conflicting clauses, both giving overriding effect to themselves. In this regard, the following are the broad principles that are required to be kept in mind to resolve the said conflict: (a) As far as possible, there must be an attempt to harmoniously construe the two conflicting non-obstante clauses; (b) Provision enacted later prevails over the one enacted earlier; (c) If later provision is found to be generic as against the earlier provision, then the earlier provision will prevail; (d) Policy underlying the provisions will have to be considered.
Now applying the aforesaid principles, with regards (a), it is submitted that a harmonious construction of Article 13 and Paragraph 5 of Schedule V may not be possible on account of the direct conflict. With regards (b), since both provisions are part of the original text of the Indian Constitution, it is important to look at the Constituent Assembly Debates (‘CAD’). Article 13 (Draft Article 8) was discussed in the CAD on 25-26 and 29 November, 1948, whereas Schedule V was discussed on 5 September 1949. It is submitted that this clearly establishes that the framers of the Indian Constitution were aware about the existence of a prior overriding clause in Article 13, yet they chose to include a subsequent non-obstante clause. With regards (c), while Article 13 provides that no law made in contravention of fundamental rights will be valid, Paragraph 5 of Schedule V deals with legislative power of the Governor in Scheduled Areas. Therefore, it is not a case where one provision is generic and the other is a specific provision, and thus, (c) cannot be employed to resolve the conflict. With regards (d), it must be borne in mind that Paragraph 5 of Schedule V is part of a set of special provisions for protection and advancement of interests of Scheduled Tribes in Scheduled Areas. One of the objectives of enacting Schedule V and granting wide legislative power to the Governor is to ensure that measures of ‘compensatory discrimination’ can be effectively taken in favour of Scheduled Tribes in Scheduled Areas, without the same being thwarted by challenges from non-Scheduled Tribes. Therefore, it is submitted that as the wide wording of the non-obstante clause is in sync with the objective, the provisions in Schedule V seek to achieve, narrow reading (as suggested by the Bombay High Court) of the same is uncalled for.
Therefore, on the application of the aforesaid principles it is submitted that non-obstante clause in Paragraph 5 of Schedule V should be given overriding effect over other provisions including Article 13. In addition, Paragraph 7 of Schedule V makes it clear that the Parliament has the power to amend any provision of Schedule V. It is submitted that despite the presence of such power, the Parliament has consciously chosen not to amend it. Thus, the non-obstante clause of Paragraph 5(1) still continues to hold and occupy the field and should be given overriding effect.
III. Standard of Judicial Review of Governor’s Power
The Indian Constitution grants the power of judicial review to the Supreme Court and also to High Courts. This power entails deciding on the constitutionality of legislations as well as of executive actions. With regards the scope and reach of judicial review, it has been observed in the case of SR Bommai v. Union of India & Ors.[(1994) 3 SCC 1, ¶ 331-332] that:
“……..it must be said at the very outset that there is not, and there cannot be, a uniform rule applicable to all cases. It is bound to vary depending upon the subject matter, nature of the right and various other factors.
This aspect has been emphasised by this Court in Indra Sawhney v. Union of India (1992) 6 J.T. 655, in the following words:
………………………At the same time, we must say that court would normally extend due deference to the judgment and discretion of the Executive – a co-equal wing – in these matters. The political executive, drawn as it is from the people and represent as it does the majority will of the people, is presumed to know the conditions and the needs of the people and hence its judgment in matters within its judgment and discretion will be entitled to the due weight.”
From the aforesaid observations in the case of SR Bommai, it is clear that the standard of judicial review will vary based on the subject matter and the courts normally extend due deference to the judgement of the executive. In the instant case, as shown in Part II of the post, the non-obstante clause makes exercise of power under Paragraph 5(1) of Schedule V immune to attack for being in violation of any of the provisions of the Constitution, including for violation of Article 13 of the Constitution. Further, since Paragraph 5(1) of Schedule V is part of the original text of the Constitution, the basic structure doctrine (which states that constitutional amendments (enacted post April 24, 1973) can be struck down for violation of basic features of the Constitution such as secularism, democracy, etc.) will be inapplicable.
In the light of the above, it is submitted that there exists an extremely limited scope for judicial review under Schedule V of the Constitution since the Governor arrives at a decision after considering the material that was placed before him/her. It is submitted that this limited scope for judicial review would be in sync with Supreme Court’s decision in Barium Chemicals & Ors. v. Company Law Board wherein it was held that:
“The scope for judicial review of the action of the Board must, therefore be strictly limited. Now, if it can be shown that the ‘Board had in fact not formed an opinion its order could be successfully challenged. This is what was said by the Federal Court in Emperor v. Shibnath Banerjee(2) and approved later by the Privy Council. Quite obviously there is a difference between not forming an opinion at all and forming an opinion upon grounds, which, if a court could go into that question at all, could be regarded as inapt or insufficient or irrelevant. It is not disputed that a court cannot go into the question of the aptness or sufficiency of the grounds, upon which the subjective satisfaction of an authority is based.”
Further, this approach of “strictly limited” judicial review of exercise of power by the Governor under Paragraph 5(1) of Schedule V is needed to respect the wide wording of the non-obstante clause and the same will also be in line with the doctrine of Separation of Powers.
* Shivam Singh is a Counsel at the Supreme Court of India. He has read law at Harvard Law School, Columbia Law School and National Law School of India University. Harpreet Singh Gupta is a Counsel at the Supreme Court of India. He is an alumnus of National Law School of India University
(Disclosure: The authors were representing one of the parties in Civil Appeal 3609 of 2002 before the Supreme Court of India).
The authors are grateful to Priyanshu Jain for the research assistance.
 Vide order dated 26.08.2010, a two judge bench referred the matter to a larger bench. Accordingly, the matter was placed before a three judge bench. However, when the matter was placed before a three judge bench, it further referred it to a five judge bench vide order dated 11.01.2016.
 The Supreme Court after hearing both sides reserved the judgement on February 13, 2020.
 Paragraph 5(1), Schedule V: “Law applicable to Scheduled Area—(1) Notwithstanding anything in this Constitution, the Governor may by public notification 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. D. Basu, Commentary on the Constitution of India, Vol. XV (TS Doabia J. et al eds., 9th edn., 2014).
 Orient Paper and Industries Ltd. v. State of Orissa, AIR 1991 SC 672, ¶ 12.
 State of Sikkim v. Surendra Prasad Sharma, AIR 1994 SC 2342, ¶ 17.
 Jay Engineering Works v. Industry Facilitation Council, (2006) 8 SCC 677, ¶ 31.
 Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of Maharashtra, (1993) 2 SCC 144.
 Jay Engineering Works v. Industry Facilitation Council, (2006) 8 SCC 677, ¶ 25-26.
 Jay Engineering Works v. Industry Facilitation Council, (2006) 8 SCC 677, ¶ 33.
 Constitution Assembly Debates, November 25-26 and 29, 1948, available at https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-11-25
 Constituent Assembly Debates, September 5, 1949, available at https://www.constitutionofindia.net/constitution_assembly_debates/volume/9/1949-09-05.
 See Ministry of Tribal Affairs, Land and Governance under the Fifth Schedule, available at https://tribal.nic.in/FRA/data/LandandGovernanceunderFifthSchedule.pdf. (Last visited on April 3, 2020)
 Rural Litigation and Entitlement Kendra v. State of U.P.,AIR 1988 SC 2187
 Paragraph 7, Schedule V, The Constitution of India, 1950.
 SR Bommai v. Union of India & Ors., (1994) 3 SCC 1, ¶ 332.
 His Holiness Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; The basic structure doctrine has been clarified and further reiterated in the cases of Waman Rao v. Union of India, (1981) 2 SCC 362, ¶ 68 and IR Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.
The fact that the basic structure doctrine applies only to Constitutional Amendments enacted post April 24, 1973 is clear from the following observations in IR Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, ¶ 151 wherein a nine judge bench of the Supreme Court observed as follows:
“The majority judgment in Kesavananda Bharti’s case read with Indira Gandhi’s case, requires the validity of each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.”
“If a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder.”
It also stands clarified by the following observations in Waman Rao v. Union of India, (1981) 2 SCC 362, ¶ 68:
“In Kesavananda Bharti (1973 Suppl SCR 1) decided on April 24, 1973 it was held by the majority that Parliament has no power to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure. We hold that all amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the Constitution was amended from time by time by the inclusion of various Acts and Regulations therein, are valid and constitutional.”
 Barium Chemicals & Ors v. Company Law Board, AIR 1967 SC 295, ¶ 10