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

From the Judgment and Order dated 23.11.2001 of the High Court of Judicature, Andhra Pradesh at Hyderabad in Writ Petition No. 20239 of 2000. With C.A. No. 7040 of 2002. 41 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. Dr. Rajeev Dhawan, A. Aadinarayan Rao, R. Venkataramani, Sr. Advs., C.S.N. Mohan Rao, R. Santhaan Krishnan, Lokesh Sharma, Aditya Kumar Archiya, Ms. Sangeeta Chandra, Praveen Kumar Pandey, Anand Padmanabhan, G. Ramakrishna Prasad, Suyodhan Byrapaneni, Ms. Filza Moonis, Bharat J. Joshi, Ms. Tatini Basu, Mohd. Wasay Khan, G. V. R. Choudary, K. Shivraj Choudhuri, Harsh Singhal, Hitesh Kumar Sharma, S. Udaya K. Sagar, Ms. Swati Bhardwaj, Mohith Rao, G. N. Reddy, T. Vijaya Bhaskar Reddy, Digvijay Harichandan, Ms. C. K. Sucharita, Hemal Kiritkumar Sheth, Shivam Singh, Harpreet Singh Gupta, Ms. Udita Singh, Lakshmi Raman Singh, John Mathew, M/s. Venkat Palwai Law Associates, Advs. for the appearing parties. The Judgment of the Court was delivered by ARUN MISHRA, J.

#1. In the reference, the validity of the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh 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.

#2. Several questions have been referred for consideration in the order dated 11.1.2016. We have renumbered question nos.1(a)(b)(c) 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? (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 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)? 42 A B C D E F G H CHEBROLU LEELA PRASAD RAO & ORS. v. 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?”

#3. 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.

#4. 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 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 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.

#5. After this Court rendered the decision on 18.12.1998, the 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.

#6. 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 43 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. 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, 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.

#7. The High Court in the minority view opined that providing 100% 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 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.

#8. 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: “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 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 44 A B C D E F G H CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] directing that the posts of teachers in the Educational Institutions 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 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;

#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 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 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; 45 A B C D E F G H 46 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R.

#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.

#9. AND WHEREAS, the Government of Andhra Pradesh in order to strengthen the educational infrastructure in the Scheduled Areas, 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;

#10. 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; 11. The following notification will be published in part-IV-B Extraordinary issue of the Andhra Pradesh Gazette, dated 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 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, 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 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 women. CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] EXPLANATION:- For the purpose of this notification, the ‘Local 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 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 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, 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.

#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: “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 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. 47 A B C D E F G H 48 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. (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 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 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. 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 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 (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 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 Services Act, 1997, was enacted to ensure that the reservation mandated CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] under Rule 22 is followed scrupulously. The Act intended to punish the 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

#12. 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 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.

#13. 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.

#14. Learned counsel for the appellants argued that as per the 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 49 A B C D E F G H 50 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. Presidential Order issued under Article 371-D of the Constitution as such the same is unconstitutional and could not prevail.

#15. 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 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 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 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%.

#16. The G.O. would be counter-productive to the aim of the 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.

#17. 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. STATE OF A.P. & ORS. [ARUN MISHRA, J.] have been created within the realm of Para 5(1) of Schedule V. The 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.

#18. 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.

#19. 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.

#20. 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 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 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.

#21. 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 51 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. 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 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.

#22. 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.

#23. 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 52 A B C D E F G H CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] (1) is to evaluate and assess the relevance, fitness, or inappropriateness 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.

#24. Shri R. Venkataramani, learned senior counsel further argued that the scheduled areas and the tribes constitute a special class. This 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 Articles 14 and 16(1).

#25. 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.

#26. 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 senior counsel has referred to various decisions, to be adverted later.

#27. 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, 53 A B C D E F G H 54 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. 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 of Tribal Welfare, has established various categories of educational institutions to cater to the needs of Scheduled Tribes children in the State.

#28. 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.

#29. 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.

#30. Shri B. Adinarayana Rao, learned senior counsel, has further argued that forests or hills separate scheduled areas from other areas. Notified tribes inhabit them. There are some non-tribals in the scheduled CHEBROLU LEELA PRASAD RAO & ORS. v. 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.

#31. 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.

#32. 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.

#33. 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. 55 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. 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 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. 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?

#34. 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, Tripura and Mizoram.”

#35. 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: “FIFTH SCHEDULE [Article 244(1)] PROVISIONS AS TO THE ADMINISTRATION AND CONTROL OF SCHEDULED AREAS AND SCHEDULED TRIBES 56 A B C D E F G H CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] PART 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.

#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 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. 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 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: 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. (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. 57 A B C D E F G H 58 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. (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) 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 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. (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— (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; (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. 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

#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 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;] (b) (c) (d) alter, but only by way of rectification of boundaries, any Scheduled Area; 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 Scheduled Area; 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 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. PART D AMENDMENT OF THE SCHEDULE 59 A B C D E F G

#7. Amendment of the Schedule.—(1) Parliament may from time to time by law amend by way of addition, variation or repeal H 60 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. 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 Constitution for the purposes of article 368.”

#36. 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 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.

#37. 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 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.”

#38. 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, regulations as to the number of members of the Tribes Advisory Council, the mode of their appointment, conduct of meetings, and other incidental matters.

#39. Para 5 of Schedule V deals with the law applicable to the scheduled areas. It containsa non-obstante clause and authorises the Governor to issue a notification to the effect that any particular Act of CHEBROLU LEELA PRASAD RAO & ORS. v. 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. (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 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 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 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 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, 61 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. 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.

#40. 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 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: “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 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 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 62 A B C D E F G H CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] area unless the Governor by public notification so directed. Sub- 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 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 63 A B C D E F G H 64 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. 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 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. 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)

#41. 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. 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.”

#42. 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 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: “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 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), (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. 65 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. 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), (d), (e), (f) and (g).”

#43. 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: “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 66 A B C D E F G H CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] Areas, adumbrates with a non obstante clause that: “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 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 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 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.” (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 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. 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. 67 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R.

#44. 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 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.

#45. 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 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 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: “(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 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 68 A B C D E F G H CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] used the word “modification” was that the Central Government 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 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 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 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 “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 (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; 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 69 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. 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 “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 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.

#46. 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) 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 …’.” 70 A B C D E F G H CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.]

#47. In Puranlal (supra), the Court observed that modification in 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).”

#48. 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. (cid:216) the action or state of excepting or being excepted.” “modification • n. the action of modifying. (cid:216) a change made.” (Source: Concise Oxford English Dictionary, 10thEdn. Revised) 71 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R.

#49. The exceptions and modifications are created by the law, which is already applicable in the area. It is not the formulation of a new law which is contemplated under Para 5(1) of Schedule V. No new law can be formulated while exercising power under Para 5(1) of Schedule V. The power of modification cannot extend to re-writing the entire statute. The power cannot be used to supplant the law, which is applicable. The law has to be applied only with exceptions or modifications. It cannot totally supersede the existing law, which is wholly opposed to the idea of applicable law as in that case it would tantamount to the new law and not the modification or exception or creation of exceptions or modifications to the applicable law. The object and substance of law applicable cannot be changed within the purview of Para 5(1), though the applicability of applicable law can be excluded. In case the Governor decides the law to remain applicable, he has the power only to create exceptions and to modify the same, not to create a new one juxtaposed to the same applicable law.

#50. The A.P. Regulation of Reservation and Appointment to Public Services Act, 1997, deals with reservation in the State in the field of public services. G.O. Ms. No.3 of 2000 did not amend the said Act. The provisions of the other Acts mentioned in the notification did not deal with the extent of reservation. Sections 78 and 79 of the A.P. Education Act, 1982 and Sections 169, 195, and 268 of the A.P. Panchayati Raj Act, 1994, are not related to reservation. The rules were framed under the proviso to Article 309. They were not framed under the main provision by the legislature. The Governor in the exercise of power under Para 5(1) of Schedule V could have amended the Public Services Act, 1997, or direct it not to apply to Scheduled Areas. The creation of 100 per cent reservation had the effect of making a new law under Para 5(1) without reference to the Act of State or Central legislation. Independently of that power could not be exercised within the purview of Para 5(1) of Schedule V to the Constitution of India. Even otherwise, even if the Act of 1997 would have been modified by the Governor, 100% reservation could not have been provided.

#51. We are of the opinion that the Governor’s power to make new law is not available in view of the clear language of Para 5(1), Fifth Schedule does not recognise or confer such power, but only power is not to apply the law or to apply it with exceptions or modifications. Thus, notification is ultra vires to Para 5(1) of Schedule V of the Constitution. 72 A B C D E F G H CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] 73 In Re: Question No.1(b): Does the power extend to A subordinate legislation?

#52. G.O. Ms. No.3/2000 refers to various provisions and Sections 78 and 79 of the A.P. Education Act, 1982. There is also reference to sections 169, 195, and 268 of the A.P. Panchayat Raj Act, 1994. None of the aforesaid provisions deals with reservation of posts. The third reference is about the A.P. State and Subordinate Service Rules, 1996, which were framed in exercise of the powers conferred by the proviso of Article 309 of the Constitution of India. Rule 22 of A.P. State and Subordinate Services Rules, 1996, deals with reservation. The rules have been framed under proviso to Article 309 of the Constitution.

#53. The Andhra Pradesh Regulation of Reservation and Appointment to Public Services Act, 1997, was enacted to provide reservations. It mandatesto ensure that reservation provided under Rule 22 is followed scrupulously, and the provisions made in the rules are not violated. In the A.P. Regulation of Reservation and Appointment Act, the percentage of reservation has not been provided to respective Scheduled Castes, Scheduled Tribes and Backward classes.

#54. Rules 22 and 22A, which provide for reservation for Scheduled Castes, Scheduled Tribes, backward classes and women have been framed under the proviso to Article 309 of the Constitution of India. They are not to partake with an Act of Parliament or State legislature. In substance, Rules 22 and 22A framed under Article 309 have been amended, which could not have been done as that is not the Act of the Parliament or the legislature of the State. Thus, the Governor could not have exercised power concerning rule framed under the proviso to Article 309 of the Constitution.

#55. In B.S. Yadav & Ors. v. State of Haryana &Ors., AIR 1981 SC 561, this Court held that the rule made by the Governor under the proviso is also the law but, at the same time, it cannot be said in view of the aforesaid decision that the Parliament or the State legislature made the rules under the proviso to Article 309 of the Constitution.

#56. Learned counsel on behalf of the State argued that Para 5(1) of Schedule V empowers the Governor to make laws, and it is a legislative function, and any order of the Governor shall be treated as legislation. The impugned order shall have to be treated as legislation and can only be tested on the parameters of competence and violation of the B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. Constitution. It cannot be tested on the touchstone of ideal norms. Reliance has been placed on Natural Resources Allocation, In re, Special Reference No.1 of 2012, (2012) 10 SCC 1 in which the Court opined: “112. Equality, therefore, cannot be limited to mean only auction, without testing it in every scenario. InState of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75, this Court, quoting from Kotch v. River Port Pilot Commissioners, 91 L Ed 1093: 330 US 552 (1947) had held that: (Anwar Ali Sarkar case, AIR 1952 SC 75, AIR p. 80, para 10) “10. … ‘The constitutional command for a State to afford equal protection of the laws sets a goal not attainable by the invention and application of a precise formula. This Court has never attempted that impossible task.’” One cannot test the validity of a law with reference to the essential elements of ideal democracy, actually incorporated in the Constitution. (See Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1) The courts are not at liberty to declare a statute void, because in their opinion, it is opposed to the spirit of the Constitution. The courts cannot declare a limitation or constitutional requirement under the notion of having discovered some ideal norm. Further, a constitutional principle must not be limited to a precise formula but ought to be an abstract principle applied to precise situations. The repercussion of holding auction as a constitutional mandate would be the voiding of every action that deviates from it, including social endeavours, welfare schemes and promotional policies, even though CPIL itself has argued against the same, and asked for making auction mandatory only in the alienation of scarce natural resources meant for private and commercial business ventures. It would be odd to derive auction as a constitutional principle only for a limited set of situations from the wide and generic declaration of Article 14. The strength of constitutional adjudication lies in case to case adjudication and therefore auction cannot be elevated to a constitutional mandate.” The submission that the order of the Governor shall be treated as legislation and has to be tested like legislation cannot be disputed. However, when it comes to modification or exception, concerning the 74 A B C D E F G H CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] Act of Parliament or the State legislature, we cannot add subordinate legislation in the ken of Para 5(1). The Governor can make a decision not to apply Parliamentary law or State law to scheduled areas and modify such law.

#57. The rules framed under the proviso to Article 309 of the Constitution cannot be said to be the Act of Parliament or State legislature. Though the rules have the statutory force, they cannot be said to have been framed under any Act of Parliament or State legislature. The rules remain in force till such time the legislature exercises power. The power of the Governor under Para 5(1) of Schedule V of the Constitution is restricted to modifying or not to apply, Acts of theParliament or legislature of the State. Thus, the rules could not have been amended in the exercise of the powers conferred under Para 5(1) of Schedule V. The rules made under proviso to Article 309 of the Constitution cannot be said to be an enactment by the State legislature. Thus, in our opinion, it was not open to the Governor to issue the impugned G.O. No.3/2000. In re: Question No.1(c): Can the exercise of the power conferred in Para 5 of the Fifth Schedule override fundamental rights guaranteed under Part III?

#58. Manifold arguments are made in this regard. Firstly, it was argued on behalf of the respondents that the basic structure doctrine is inapplicable upon the Constitution’s original text. It must not be employed to test the validity of the impugned action. The fifth Schedule under Article 244(1) of the Constitution is part of the original text, and hence, it must not be tested under the Basic Structure Doctrine. Reliance has been placed on Kesavananda Bharti v. State of Kerala, (1973)4 SCC 225 in which this Court laid down that Constitutional amendments post- 1973 can be struck down if they violate the Basic Structure Doctrine.

#59. Reliance has also been placed on Waman Rao and Ors. v. Union of India and Ors., (1981) 2 SCC 362, in which this Court opined thus: “49. We propose to draw a line, treating the decision in Kesvananda Bharati, (1973) 4 SCC 225, as the landmark. Several Acts were put in the Ninth Schedule prior to that decision on the supposition that the power of Parliament to amend the Constitution was wide and untrammelled. The theory that the Parliament cannot exercise its amending power to damage or destroy the basic 75 A B C D E F G H 76 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. structure of the Constitution was propounded and accepted for the first time in Kesavananda Bharati, (1973) 4 SCC 225, is one reason for upholding the laws incorporated into the Ninth Schedule before April 24, 1973, on which date the judgment in Kesavananda Bharati, (1973) 4 SCC 225, was rendered. A large number of properties must have changed hands, and several new titles must have come into existence on the faith and belief that the laws included in the Ninth Schedule were not open to challenge on the ground that they were violative of Articles 14, 19 and 31. We would not be justified in upsetting settled claims and titles and in introducing chaos and confusion into the lawful affairs of a fairly orderly society.

#50. The second reason for drawing a line at a convenient and relevant point of time is that the first 66 items in the Ninth Schedule, which were inserted prior to the decision in Kesavananda Bharati, (1973) 4 SCC 225, mostly pertain to laws of agrarian reforms. There are a few exceptions amongst those 66 items, like Items 17, 18, 19, which relate to Insurance, Railways and Industries. But almost all other items would fall within the purview of Article 31-A(1)(a). In fact, Items 65 and 66, which were inserted by the 29th Amendment, are the Kerala Land Reforms (Amendment) Acts of 1969 and 1971 respectively, which were specifically challenged in Kesavananda Bharati, (1973) 4 SCC 225. That challenge was repelled.

#51. Thus, insofar as the validity of Article 31-B read with the Ninth Schedule is concerned, we hold that all Acts and Regulations included in the Ninth Schedule prior to April 24, 1973 will receive the full protection of Article 31-B. Those laws and regulations will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution. Acts and Regulations, which are or will be included in the Ninth Schedule on or after April 24, 1973 will not receive the protection of Article 31-B for the plain reason that in the face of the judgment in Kesavananda Bharati, (1973) 4 SCC 225, there was no justification for making additions to the Ninth Schedule with a view to conferring a blanket protection on the laws included therein. The various constitutional amendments, by which additions were CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] made to the Ninth Schedule on or after April 24, 1973, will be valid only if they do not damage or destroy the basic structure of the Constitution.” (emphasis supplied)

#60. Reliance has also been placed on the decision of this Court in I.R. Coelho (Dead) by LRs. v. State of T.N., (2007) 2 SCC 1, decided by a nine-Judge Bench of this Court thus: “151. The effect of the application of the limitation of the basic structure to a scheduled Act is that Article 31-B read with the Ninth Schedule is no longer not subject to judicial review. Judicial review is, therefore, very much present.” Thus, it was urged that since the original text of the Constitution is contained in the Fifth Schedule, it would not be permissible to test the same in terms of the basic structure. Article 14is the part of the basic structure; therefore, it cannot be used to dilute the non-obstante clause of Para 5(1) of Fifth Schedule, and action taken thereunder cannot be tested on the anvil of violation of fundamental rights.

#61. In our opinion, the submission based on Basic Structure Doctrine is not at all germane to the instant case to decide the validity of the provisions contained in Para 5 of Fifth Schedule of the Constitution or validity of any other Constitutional amendment. We are deciding the validity of the action of the Governor issuing impugned notification, providing 100 per cent reservation to Scheduled Tribes in the Scheduled Areas. Every action of the legislature, whether it is Parliament or State, has to conform with the rights guaranteed in Part III of the Constitution. The original scheme of the Constitution itself so provides; thus, the argument based upon Basic Structure Doctrine does not hold the validity of the notification as that action is taken under the provisions, and the provisions in Para 5 Schedule V do not override the rights guaranteed in Part III of the Constitution. The limitations on the legislature in the field of legislation are applicable to Governor also.

#62. It was next argued that there is absolute discretion with the Governor to make modification and exception as to the applicability of laws; however, absolute discretion cannot be said to be exercisable arbitrarily. The Constitution has not conferred any arbitrary poweron any constitutional functionary. Arbitrariness is an antithesis to the concept of equality, which is enshrined in Article 14 of the Constitution, and the same is its spirit and soul. 77 A B C D E F G H 78 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R.

#63. The provisions of the Constitution are required to be interpreted keeping in view the will of the makers thereof as held in S.R. Chaudhuri v. State of Punjab &Ors., (2001) 7 SCC 126 thus: “33. Constitutional provisions are required to be understood and interpreted with an object-oriented approach. A Constitution must not be construed in a narrow and pedantic sense. The words used may be general in terms but, their full import and true meaning have to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve. Debates in the Constituent Assembly referred to in an earlier part of this judgment clearly indicate that a non-member’s inclusion in the Cabinet was considered to be a “privilege” that extends only for six months, during which period the member must get elected, otherwise he would cease to be a Minister. It is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the court to find out the intention of the framers of the Constitution. We must remember that a Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit. The debates clearly indicate the “privilege” to extend “only” for six months.”

#64. The very concept of equality, which is sought to be achieved by protective discrimination, is not just a matter of classification but also aims against arbitrariness. Equality is the antithesis of arbitrariness. In Col. A.S. Iyerand Ors. v. V. Balasubramanyam, (1980) 1 SCC 634, the Court as to the doctrine of classification observed: “57. x xx This tendency, in an elitist society with a diehard caste mentality, is a disservice to our founding faith, even if judicially sanctified. Subba Rao, J., hit the nail on the head when he cautioned in Lachhman Das v. State of Punjab, (1963) 2 SCR 353, 395: AIR 1963 SC 222: “The doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Over-emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality; the fundamental right to equality before the law and the equal protection of the laws may be replaced by the doctrine of classification.”

#65. In Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors., (1981) 1 SCC 722, the Court considered the doctrine of classification. The classification is not only to be reasonable; it must satisfy the requisite conditions. Whenever there is arbitrariness in State action, whether it be of the legislature or the executive or authority under Article 12, the provisions of Article 14 immediately springs into action to strike down such an action. The Court held: “16. If the Society is an ‘authority’ and therefore ‘State’ within the meaning of Article 12, it must follow that it is subject to the constitutional obligation under Article 14. The true scope and ambit of Article 14 have been the subject-matter of numerous decisions, and it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view was taken was that that article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E.P. Royappa v. State of Tamil Nadu, (1974) 2 SCR 348: (1974) 4 SCC 3, that this Court laid bare a new dimension of Article 14 and pointed out that that article has highly activist magnitude and it embodies a guarantee against arbitrariness. This Court speaking through one of us (Bhagwati, J.) said: SCC p. 38: SCC (L&S) p. 200, para 85] “The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? 79 A B C D E F G H 80 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. It is a founding faith, to use the words of Bose, J., ‘a way of life’, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.” This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa case, (1974) 2 SCR 348: (1974) 4 SCC 3, and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, where this Court again speaking through one of us (Bhagwati, J.) observed: (SCC pp. 283-84, para 7) “Now the question immediately arises as to what is the requirement of Article 14: What is the content and reach of the great equalising principle enunciated in this Article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] 81 essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.” A This was again reiterated by this Court in International Airport Authority case, (1979) 3 SCC 489, at p. 1042 (SCC p. 511) of the Report. It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because an action that is arbitrary must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not paraphrase of Article 14 nor is it the objective and end of that article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an “authority” under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.”

#66. In E.P. Royappa v. State of Tamil Nadu & Anr., (1974) 4 SCC 3, concerning the concept of equality and arbitrariness in action, in the context of Articles 14 and 16, the Court held: “85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of Articles 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In B C D E F G H 82 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.”

#67. In Maneka Gandhi v. Union of India & Anr., (1978) 1 SCC 248, this Court held that fundamental rights are not distinct and mutually exclusive rights. Each freedom has its dimensions. The law is not freed from the necessity to meet the challenge of another guaranteed freedom. Thus, the law effecting personal liberty under Article 21 will also have to satisfy the test under Articles 14 and 19. In majority opinion, Beg, J. observed: CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] “202. Articles dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial Justice (social, economic and political), Freedom (not only of thought, expression, belief, faith and worship, but also of association, movement, vocation or occupation as well as of acquisition and possession of reasonable property), of Equality (of status and of opportunity, which imply absence of unreasonable or unfair discrimination between individuals, groups, and classes) and of Fraternity (assuring dignity of the individual and the unity of the nation), which our Constitution visualises. Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial but would defeat the very objects of such protection.” Justices Bhagwati, Untwalia and Fazal Ali observed: “The nature and requirement of the procedure under Article 21

#7. Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of Tamil Nadu, (1974) 2 SCR 348, namely, that “from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14”. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of 83 A B C D E F G H 84 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. treatment...The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.” Krishna Iyer, J. observed: “96. A thorny problem debated recurrently at the bar, turning on Article 19, demands some juristic response although avoidance of overlap persuades me to drop all other questions canvassed before us. The Gopalan verdict, with the cocooning of Article 22 into a self-contained code, has suffered suppression at the hands of R.C. Cooper, (1970) 3 SCR 530. By way of aside, the fluctuating fortunes of fundamental rights, when the proletarist and the proprietarist have asserted them in Court, partially provoke sociological research and hesitantly project the Cardozo thesis of sub-conscious forces in judicial noesis when the cycloramic review starts from Gopalan, moves on to In re Kerala Education Bill, 1959 SCR 995 and then on to All-India Bank Employees’ Association, (1962) 3 SCR 269, next to Sakal Papers, (1962) 3 SCR 842, crowning in Cooper and followed by Bennett Coleman, (1973) 2 SCR 757 and Shambhu Nath Sarkar, (1973) 1 SCC 856. Be that as it may, the law is now settled, as I apprehend it, that no article in Part III is an island but part of a continent and the conspectus of the whole part gives the direction and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have a synthesis. The proposition is indubitable that Article 21 does not, in a given situation, exclude Article 19 if both rights are breached.”

#68. In Neelima Misra v. Harinder Kaur Paintal & Ors., (1990) 2 SCC 746, this Court held that an administrative action, whether legislative, administrative or quasi-judicial must not be illegal, irrational or arbitrary. The non-obstante clause as to what it excludes is to be considered only in light of extent of power conferred on the Governor to issue a notification, to order that Act of the legislature shall not apply and CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] may make exceptions and modifications. However, at the same time power is to be exercised within bounds of legislative power conferred on the legislature. The special control is conferred upon the Governor to direct that any Act shall not apply, which could not otherwise apply or be applicable in the area without such exceptions or modifications as ordered by the Governor. Effect of the non-obstante clause:

#69. Para 5(1) of the Fifth Schedule of the Constitution starts with a non-obstante clause. What is the effect of the non-obstante clause vis-à-vis the applicability to other provisions of the Constitution? Whether the provisions of Para 5(1) prevail over all other provisions of the Constitution? Whether the fundamental rights in Part III of the Constitution are inapplicable and need not be satisfied?

#70. The provision of the Fifth Schedule beginning with the words “notwithstanding anything in this Constitution” cannot be construed as taking away the provision outside the limitations on the amending power and has to be harmoniously construed consistent with the foundational principles and the basic features of the Constitution.

#71. In R.C. Poudyal v. Union of India & Ors., 1994 Supp. (1) SCC 324, this Court considered the question whether the non-obstante clause (f) to Article 371F inserted by the Constitution (36th Amendment) Act, 1975 containing a special provision for the State of Sikkim. The Governor of Sikkim has exclusive responsibility for peace and equitable arrangement, for social and economic advancement and various other provisions have been made that the non-obstante clause is contained in Article 371-F, cannot be construed as taking clause (f) of Article 371F outside the limitation on the amendment power itself. This Court opined that: “102. It is, however, urged that Article 371-F starts with a non- obstante clause, and therefore the other provisions of the Constitution do not limit the power to impose conditions. But Article 371-F cannot transgress the basic features of the Constitution. The non-obstante clause cannot be construed as taking clause (f) of Article 371-F outside the limitations on the amendment power itself. The provisions of clause (f) of Article 371-F and Article 2 have to be construed harmoniously consistent with the foundational principles and basic features of the Constitution. Whether clause 85 A B C D E F G H 86 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. (f) has the effect of destroying a basic feature of the Constitution depends, in turn, on the question whether reservation of seats in the legislature based on ethnic group is itself destructive of democratic principle. Whatever the merits of the contentions be, it cannot be said that the issues raised are non-justiciable.

#103. In Mangal Singh v. Union of India, (1967) 2 SCR 109, 112 this Court said: “Power with which the Parliament is invested by Articles 2 and 3, is power to admit, establish, or from new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution, and is not power to override the constitutional scheme.”

#104. Even if clause (f) of Article 371-F is valid, if the terms and conditions stipulated in a law made under Article 2 read with clause (f) of Article 371-F go beyond the constitutionally permissible latitudes, that law can be questioned as to its validity. The contention that the vires of the provisions and effects of such a law are non-justiciable cannot be accepted.”

#72. In State of Sikkim v. Surendra Prasad Sharma & Ors., (1994) 5 SCC 282, this Court held that the laws, which were in force before the commencement of the Constitution of India, must be consistent with Part III of the Constitution to continue to be in force. This Court opined: “11. From the above constitutional scheme what emerges is that the laws which were in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered, repealed or amended by a competent legislature or authority except to the extent inconsistent with Part III of the Constitution. However, notwithstanding anything in the Constitution, Parliament was empowered to make laws inter alia with respect to any matter referred to in Article 16(3). Thus, Parliament could prescribe by law the requirement as to residence within a State or Union Territory and if such a law is made nothing in Article 16 will stand in the way of such prescription. Since Article 16(3) is in Part III of the Constitution, the law, if made, CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] would clearly be intra vires the Constitution. By virtue of Article 35(b) any law in force immediately before the commencement of the Constitution in relation to any matter in Article 16(3) shall continue in force, notwithstanding anything in the Constitution. The expression ‘law in force’ has the meaning assigned to it in Article 372, Explanation I. This is the conjoint effect of Articles 13, 16(3), 35(b) and 372 of the Constitution. Since Sikkim was never a part of the territory of India immediately before the commencement of the Constitution, the High Court has ruled out the applicability of the said provisions in this case. Article 2 provides that Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit. The law so made must conform to the requirements of Article 13. That is the view expressed in Poudyal case, 1944 Supp (1) SCC 324. But the historical events preceding its inclusion in the territory of India must be borne in mind. Sikkim during the British period was ruled by a monarch called the Chogyal. After India became free there was a popular demand from the people of Sikkim for its merger with India. Pursuant to the sentiments expressed by the People of Sikkim, a treaty was entered into between India and the Chogyal short of merger which was followed up by consequential changes. However, the public demand became violent forcing the Chogyal to request the Union Government to assume the responsibility for good Government. Ultimately, on 8-5-1973, a formal agreement was signed between the Chogyal and the political leaders of Sikkim on the one side and the Government of India on the other in pursuance whereto the people of Sikkim were to enjoy certain democratic rights. This development would show that Sikkim which was a British protectorate under the British paramountcy until 1947 came within the protectorate of India under the treaty of 3- 12-1950 and later became an associate State by the insertion of Article 2-A in the Constitution by the 35th Amendment on the terms and conditions set out in the Tenth Schedule and soon thereafter by the 36th Amendment Article 2-A was deleted and full statehood under the Union of India was conferred on the terms and conditions incorporated in the newly added Article 371-F. These constitutional changes had to be introduced in 1975 in reciprocation of the understanding on which Sikkim agreed to its merger with India and to fulfil the aspirations of the Sikkimese 87 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. people. The terms and conditions for merger of Sikkim found in Article 371-F have, therefore, to be viewed in this background.”

#73. However, under the special agreement special provisions contained in Article 371-F(k), all laws in force in the State of Sikkim were protected until amended or repealed to ensure a smooth transition from Chogyal’s rule to democratic rules under the Constitution. Article 371-F(l) enshrines that many of such existing laws may be inconsistent with the Constitution, as such immunity was granted in the transitional period, this Court in State of Sikkim v. Surendra Prasad Sharma (supra)considered non-obstante clause in Article 371-F and observed that the laws in force would have had to meet the test of Article 13 of the Constitution. It was held: “22. Article 371-F, is as stated earlier, a special constitutional provision concerning the State of Sikkim. The reason why it begins with a nonobstante clause is that the matters referred to in the various clauses immediately following required a protective cover so that such matters are not struck down as unconstitutional because they do not satisfy the constitutional requirement. Unless such immunity was granted, ‘the laws in force’ would have had to meet the test of Article 13 of the Constitution. Same being the objective, existing laws or laws in force came to be protected by clause (k) added to Article 371-F. The said laws in force in the State of Sikkim were, therefore, protected, until amended or repealed, to ensure a smooth transition from the Chogyal’s rule to the democratic rule under the Constitution. Inherent in clause (l) is the assumption that many of such existing laws may be inconsistent with the Constitution and, therefore, the President came to be conferred with a special power to make adaptations and modifications with a view to making the said rule consistent with the Constitution. Of course, this power had to be exercised within two years from the appointed day. If any adaptation or modification is made in the law in force prevailing prior to the appointed day, the law would apply subject to such adaptation and modification. It is thus obvious that the adaptation and modification made by the President in exercise of this special power does not have the effect of the law ceasing to be a law in force within the meaning of clause (k) of Article 371-F. Therefore, on the plain language of the said provision it is difficult to hold that the effect 88 A B C D E F G H CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] 89 of adaptation or modification is to take the law out of the purview of ‘laws in force’.” A

#74. The non-obstante clause contained in Para 5(1) of the Fifth Schedule of the Constitution means the Governor can exercise power in spite of the provisions contained in Article 245 of the Constitution, conferring the power upon Parliament to make laws and the legislature of the State. The Parliament has the power to enact the law. It cannot be questioned on the ground that it would have extra-territorial operation.

#75. The non-obstante clause has also been considered in Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma & Ors. v. K. Devi &Ors., AIR 1996 SC 1963. The scope has to be considered in the context and purpose for which it has been carved out.

#76. In Peerless General Finance and Investment Co. Ld. And Anr. v. Reserve Bank of India, (1992) 2 SCC 343, the Court held that the court has to make every endeavour to ensure that the efficacy of fundamental rights is maintained and the legislature is not invested with unlimited power. The Court is to guard against the gradual encroachment and strike down a restriction as soon as it reaches that magnitude of total infringement of the right. The Court observed: “48. x x x The State can regulate the exercise of the fundamental right to save the public from a substantive evil. The existence of the evil as well as the means adopted to check it are the matters for the legislative judgment. But the Court is entitled to consider whether the degree and mode of the regulation is in excess of the requirement or is imposed in an arbitrary manner. The Court has to see whether the measure adopted is relevant or appropriate to the power exercised by the authority or whether it overstepped the limits of social legislation. Smaller inroads may lead to larger inroads and ultimately result in total prohibition by indirect method. If it directly transgresses or substantially and inevitably affects the fundamental right, it becomes unconstitutional, but not where the impact is only remotely possible or incidental. The Court must lift the veil of the form and appearance to discover the true character and the nature of the legislation, and every endeavour should be made to have the efficacy of fundamental right maintained and the legislature is not invested with unbounded power. The Court has, therefore, always to guard against the B C D E F G H 90 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. gradual encroachments and strike down a restriction as soon as it reaches that magnitude of total annihilation of the right.”

#77. In case the argument raised on behalf of the respondent is accepted that the Governor has unfettered power, notwithstanding the provisions contained in Part III of the Constitution, Article 13 of the Constitution becomes redundant. The power of judicial review of court and legislature would loom into insignificance. There is no power to the legislature or to the Governor to act contrary to the constitutional provisions, and they cannot enact a law in derogation to the provisions contained in Part III of the Constitution. In Chandavarkar S. R. Rao v. Ashalata S. Guram, (1986) 4 SCC 447, it has been held that the effect of the non-obstante clause is that in spite of the provisions of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned, the enactment following it will have its full operation or that the provision vested in the non-obstante clause would not be an impediment for the operation of the enactment. In case Governor decides not to apply the Act of the Parliament or legislature of the State or apply them with exceptions and modifications, he is empowered to do so. But it would be subject to the restriction on the very legislative power with which the Parliament or legislature of State suffers from the above- avowed objective devised by the framers of the Constitution.

#78. The power is conferred on the Governor to deal with the scheduled areas. It is not meant to prevail over the Constitution. The power of the Governor is pari passu with the legislative power of Parliament and the State. The legislative power can be exercised by the Parliament or the State subject to the provisions of Part III of the Constitution. In our considered opinion, the power of the Governor does not supersede the fundamental rights under Part III of the Constitution. It has to be exercised subject to Part III and other provisions of the Constitution. When Para 5 of the Fifth Schedule confers power on the Governor, it is not meant to be conferral of arbitrary power. The Constitution can never aim to confer any arbitrary power on the constitutional authorities. They are to be exercised in a rational manner keeping in view the objectives of the Constitution. The powers are not in derogation but the furtherance of the constitutional aims and objectives. In Re: Question No.1(d): Whether the exercise of power under the Fifth Schedule of the Constitution overrides any parallel exercise of power by the President under Article 371D? CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.]

#79. It was argued on behalf of the appellants that Article 371D was promulgated in view of geographical disparity in public employment within the State of Andhra Pradesh. The candidates from certain districts/ areas of the State capturing a disproportionately large number of public posts. Article 371D requires the State Government to reorganise class or classes of posts in the State into different local cadres for different parts of the State. The Presidential Order of 1975 was issued providing district/zone as a unit for the local cadre. Whereas, G.O. provided that all the posts of teachers in the schools situated in Scheduled Areas in the State of Andhra Pradesh shall be filled in with the local Scheduled Tribes candidates only. A district or zone is the unit for the local cadre. Whereas on the other hand, the impugned G.O.Ms. No.3 of 2000 provided that all the posts of teachers in the Scheduled Area, forming part of a district, to be filled up by local Scheduled Tribe candidates only. The impugned G.O. reserved all the posts in the Scheduled Area; thus, aspiring candidates in a district/zone in the Scheduled Areas cannot apply for the post of teachers in the district or zone as all the posts have been reserved for local Scheduled Tribe candidates and “they cannot apply outside the district or zone” because of the restrictions under Article 371D of the Constitution.

#80. Learned counsel for the appellant further argued that the candidates other than Scheduled Tribe candidates in a district residing in Scheduled Areas cannot apply at all, and they have been deprived of the opportunity of getting public employment. The impugned G.O. takes away the entire opportunity of non-Scheduled Tribe candidates even from applying for the post of teachers. Thus, the impugned G.O. transgresses Article 371D of the Constitution and is unconstitutional. The Governor could not have issued the notification in such a manner in exercise of powers under Para 5 of Fifth Schedule, which is repugnant to the Presidential Order issued under Article 371D. The Governor cannot exercise the powers under Para 5(1) of Fifth Schedule and cannot modify or override the provisions of Article 371D of the Constitution.

#81. It was argued on behalf of respondents that there is no repugnancy in the Presidential Order and the impugned notification issued by the Governor. Article 371D also starts with non-obstante clause and conflict between the non-obstante clause as far as possible must be resolved by way of harmonious construction of two conflicting non- obstante clauses as laid down in Jay Engineering Works Limited v. Industry Facilitation Council and Anr., (2006) 8 SCC 677: 91 A B C D E F G H 92 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. “28. Both the Acts contain non obstante clauses. Ordinary rule of construction is that where there are two non obstante clauses, the latter shall prevail. But it is equally well settled that ultimate conclusion thereupon would depend upon the limited context of the statute. (See Allahabad Bank, (2000) 4 SCC 406, para 34.)

#29. In Maruti Udyog Ltd. v. Ram Lal, (2005) 2 SCC 638, it was observed: (SCC p. 653, para 39) “39. The interpretation of Section 25-J of the 1947 Act as propounded by Mr Das also cannot also be accepted inasmuch as in terms thereof only the provisions of the said chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including the Standing Orders made under the Industrial Employment (Standing Orders) Act, but it will have no application in a case where something different is envisaged in terms of the statutory scheme. A beneficial statute, as is well known, may receive liberal construction but the same cannot be extended beyond the statutory scheme.”

#30. In Sarwan Singh v. Kasturi Lal, (1977) 1 SCC 750, this Court opined: (SCC p. 760, para 20) “When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration.”

#31. The endeavour of the court would, however, always be to adopt a rule of harmonious construction.” It was laid down that endeavour of the court would always be to adopt a rule of harmonious construction, and the non-obstante clause must be given effect as to the Parliament intent and not beyond that. It was also urged that if the latter provision is found to be generic as against the earlier provision, which is a special provision, then the earlier provision shall prevail. Reliance has also been placed on Maharashtra Tubes Ltd. v. State Industrial & Investment Corporation of Maharashtra Ltd. and Anr., (1993) 2 SCC 144. The policy underlying the provisions has to be considered, as observed in Jay Engineering Works (supra). CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] The notification issued, according to the Presidential Order, creates district/zonal cadre for teachers. The Governor Order reserved the posts of teachers in the Scheduled Area for Scheduled Tribes. There is no strict conflict between the aforesaid notification, and harmonious construction is possible.

#82. It was further urged on behalf of respondents that the State of Andhra Pradesh was reorganised in the year 1956, and part of the areas falling in the State of Hyderabad, Telugu speaking areas known as Telangana merged with Andhra Pradesh. In the Telangana region, Mulki Rules prevail, which provide for residence as a requirement for public employment. After the reorganisation, the Central Government enacted the A.P. Public Employment (Requirement as to Residence) Act, 1957, to continue the same. On challenge being made as to the provisions being violative of Article 16(2), this Court in Narasimha Rao v. State of A.P., (1969) 1 SCC 839, opined that the residence requirement as unconstitutional, resulting in agitation demanding division of State. The Parliament amended the Constitution by inserting Article 371D, empowering the President to issue an order providing equal opportunities to people belonging to different parts of the State in education and public employment. Under para 3 of the Presidential Order, the civil posts in the State were to be organised on local cadres, such as Lower Division Clerks and equivalent Non-Gazetted category and existed Gazetted and Non-Gazetted category in each department. Paras 4 and 5 of the Presidential Order provided that employees to be allotted to local cadres/ areas, which shall be a unit for all purpose. Under para 6 of the Presidential Order, local areas have to be the basis for various posts making district/ zone, multi zone and State-wide as local areas for all civil posts. Para 8 provided for reservation by way of direct recruitment for local candidates. Article 371D(10) provided for non-obstante clause to make provisions immune from challenge from Articles 14 and 16 of the Constitution. The operation of Article 371D is confined to providing for reservation in direct recruitment for local candidates and also for various percentages of reservation for locals. Under para 6(1) each district shall be regarded as local area. The action is not violative of Article 371D. It was further argued on behalf of respondents that the President has issued notification under Article 371D towards the promotion of equality of opportunity. The notification did not deal with Scheduled Areas or employment opportunities in Scheduled Areas. No notification issued by the President under Article 371D collides or is in conflict with the impugned notification. 93 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. The preferences given to the local areas within the meaning of Presidential notification or exclusion of non-local areas cadre will not offend Article 14 of the Constitution, for which reliance has been placed on Sandeep and Ors. v. Union of India and Ors., (2016) 2 SCC 328, Dr. Fazal Ghafoor v. Principal, Osmania Medical College, Hyderabad and Ors., (1988) 4 SCC 532, Dr. Fazal Ghafoor v. Union of India and Ors., (1988) Supp. SCC 794, N.T.R. University of Health Science, Vijayawada v. G. Babu Rajendra Prasad and Anr., (2003) 5 SCC 350. Similar logic, which is applicable to Articles 14 and 371D, is also to be relevant in the context of what the Governor does under the Fifth Schedule. Consequently, what the Governor has done to greater equality for Scheduled Areas will not be faulted.

#83. The non-obstante clause in Article 371D will not annul the non-obstante clause in Para 5 of the Fifth Schedule. Two constitutional provisions operate in distinct domain. Article 371D was not enacted to be a super imposition on Fifth Schedule. The object and purpose of legislations or provisions with respect to non-obstante clause are distinct. Thus, the court will not see any conflict. Reference has been made to R.S. Raghunath v. State of Karnataka and Ors.,(1991) Supp. 1 SCR 387, Sarwan Singh and Ors. v. Kasturi Lal, (1977) 2 SCR 421, Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd. and Ors., (1990) 1 SCR 862, The South India Corporation (P) Ltd. v. The Secretary, Board of Revenue Trivandrum and Ors., (1964) 4 SCR 280, and Dr. Fazal Ghafoor v. Principal, Osmania Medical College, Hyderabad and Ors., (1988) 4 SCC 532.

#84. Article 371-D has been inserted in the Constitution of India. Sub-clauses 1, 2 and 10 of Article 371-D are extracted hereunder: “371D. Special provisions with respect to the State of Andhra Pradesh or the State of Telangana.—(1) The president may by order made with respect to the state of Andhra Pradesh or the State of Telangana provide, having regard to the requirement of each State, for equitable opportunities and facilities for the people belonging to different parts of such State, in the matter of public employment and in the matter of education, and different provisions may be made for various parts of the States. (2) An order made under clause (1) may, in particular,— 94 A B C D E F G H CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS. [ARUN MISHRA, J.] (a) require the State Government to organise any class or classes of posts in a civil service of, or any class or classes of civil posts under, the State into different local cadres for different parts of the State and allot in accordance with such principles and procedure as may be specified in the order the persons holding such posts to the local cadres so organised; (b) specify any part or parts of the State which shall be regarded as the local area— (i) for direct recruitment to posts in any local cadre (whether organised in pursuance of an order under this article or constituted otherwise) under the State Government; (ii) for direct recruitment to posts in any cadre under any local authority within the State; and (iii) for the purposes of admission to any University within the State or to any other educational institution which is subject to the control of the State Government; (c) specify the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made— (i) in the matter of direct recruitment to posts in any such cadre referred to in sub-clause (b) as may be specified in this behalf in the order; (ii) in the matter of admission to any such University or other educational institution referred to in sub-clause (b) as may be specified in this behalf in the order, to or in favour of candidates who have resided or studied for any period specified in the order in the local area in respect of such cadre, University or other educational institution, as the case may be. (3) x x x 10) The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.” 95 A B C D E F G H 96 A B C D E F G H SUPREME COURT REPORTS [2020] 6 S.C.R. The provisions contained in Article 371D were inserted by the Constitution (Thirty-second Amendment) Act, 1973, w.e.f. 1.7.1974 and has further been amended by the Andhra Pradesh Reorganisation Act, 2014, applicable to the State of Andhra Pradesh or the State of Telangana.

#85. The President in exercise of powers under Article 371-D(1) and (2) promulgated order, namely, Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975. Para 3 provided for organisation of local cadres. Recruitment to various categories has to be made to local cadres taking district as a unit or 3 or 4 districts comprising as a zone. The local area has been defined in Para 6(1) thus: “Local areas: (1) Each district shall be regarded as a local area– (i) For direct recruitment to posts in any local cadre under the State Government comprising all or any of the posts in any department in that district belonging to the category of Junior Assistants or to any other category equivalent to or lower than that of a Junior Assistant. (ii) For direct recruitment to posts in any cadre under any local authority within that district, carrying a sale of pay the minimum of which does not exceed the minimum of the scale of pay of a Junior Assistant or a fixed pay not exceeding that amount.” For recruitment to the posts of teachers, a district is a unit. Para 7 defines local candidates. Para 8 provides that 80 per cent of the posts to be filled by direct recruitment. The matter of recruitment to various local cadres is required to be in terms of the provisions of the Presidential Order issued under Article 371D. The recruitment of teachers is to be made for which district is a unit.