Fifth Schedule

Topic: Special Provisions, Scheduled and Tribal Areas · NCERT: Class 11, Ch 8 "Local Governments"

Meaning

The Fifth Schedule is the part of the Constitution that sets out how Scheduled Areas are run and controlled. Scheduled Areas are tribal areas declared by the President under Article 244(1). The Fifth Schedule covers every state except Assam, Meghalaya, Tripura and Mizoram, which come under the Sixth Schedule. It matters because it gives the Governor strong powers to protect tribal land and to block or change laws that may harm tribes. At the same time, these areas stay part of the normal state.

Explanation

Where it applies and how Scheduled Areas are declared (para 6)

• Scheduled Area: a territory (a piece of land), not a group of people. It is declared by the President by order.
• Ten states have Scheduled Areas [2]: Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan.
• Steps under para 6: 1. Declare: The President declares an area a Scheduled Area by order. The first such orders were the Scheduled Areas (Part A States) and (Part B States) Orders of 1950. 2. Rescind: The President may rescind (cancel) an order at any time, for the whole area or for part of it. 3. Increase: The President may make a Scheduled Area larger, but only after consulting the Governor. 4. Alter boundaries: The President may change boundaries only by rectifying them, that is, by correcting them. 5. New state boundaries: If a state's boundaries change, the President may issue a fresh order after consulting the Governor.

• No vote of Parliament is needed at any step. It is an executive order.

• Dhebar Commission criteria for a Scheduled Area [3]:

• a preponderance (clear majority) of tribal people;
• an area that is compact and of reasonable size;
• a viable administrative unit, such as a district, block or taluk;
• marked economic backwardness compared with nearby areas.
• The areas should be kept as small as strictly necessary, but large enough for special laws and special administration to work [3].

The protective tools: report, Council and law-making power

• Para 3 – Governor's report and Union directions:
• The Governor reports to the President every year, or whenever the President asks, on how Scheduled Areas are run.

• The Union can give directions to the state on running these areas. This tilts power towards the Centre.

• Para 4 – Tribes Advisory Council (TAC):

• TAC: a body that advises the Governor on the welfare of Scheduled Tribes (STs).
• Size: not more than 20 members. As nearly as possible, three-fourths of them must be ST members of the state Legislative Assembly [2]. If there are not enough ST MLAs, other STs fill the remaining seats.
• Mandatory in every state that has Scheduled Areas. All ten such states have a TAC [2].
• Optional in states that have STs but no Scheduled Area. The President must direct it. West Bengal, Tamil Nadu and Uttarakhand have such TACs [2].

• The TAC advises only on matters the Governor refers to it [2]. The Governor makes the rules on its members, its chairperson and how it works.

• Para 5 – Governor's law-making powers (the core shield):

• 5(1): By public notification, the Governor can direct that an Act of Parliament or of the state will not apply to a Scheduled Area, or will apply only with exceptions and modifications. This can be done with retrospective effect, meaning it can cover a past period.
• 5(2): The Governor can make regulations (rules with the force of law) for the peace and good government of the area. In particular, regulations may:
  • prohibit or restrict the transfer of land by or among STs;
  • regulate the allotment of land to STs;
  • regulate money-lending to STs.

• 5(3): These regulations may repeal or amend any Act of Parliament or of the state that applies to the area.

• Steps to make a para 5 regulation: 1. The Governor consults the TAC. This is compulsory where a TAC exists. 2. The Governor makes the regulation. 3. The regulation is sent to the President at once. 4. It has no effect until the President assents (gives formal approval).

Limits and how the Schedule is amended

• Para 7 – amendment by simple majority: Parliament can add to, change or repeal the Fifth Schedule by an ordinary law, passed by a simple majority.
• Such a law is not treated as an amendment under Article 368, the article on the special procedure for amending the Constitution.

• So it needs no special majority and no approval by the states.

• Fundamental Rights still apply: The Governor's para 5 power can change laws. It cannot override Part III, the part on Fundamental Rights (Chebrolu, 2020).

• Who really decides? Experts disagree on whether the Governor uses para 5 alone (in discretion) or on the advice of ministers under Article 163. In practice, the state government drives the decisions.

In the Constitution and practice

• Constitutional home:
• Article 244(1) links Scheduled Areas to the Fifth Schedule.

• Article 244(2) links the tribal areas of Assam, Meghalaya, Tripura and Mizoram to the Sixth Schedule.

• Colonial roots:

• The Scheduled Districts Act, 1874 and the "backward tracts" of the Government of India Act, 1919 kept tribal areas outside ordinary laws.
• The Government of India Act, 1935 (ss. 91-92) created partially excluded areas. The Governor ran them under individual judgement, meaning the Governor heard the ministers but could overrule them. These areas broadly became Fifth Schedule areas.

• Under British rule, keeping these areas apart was a way of control. It was not self-rule.

• Constituent Assembly:

• The Thakkar Sub-committee (1947), chaired by A.V. (Thakkar Bapa) Thakkar, studied excluded and partially excluded areas outside Assam. Its report shaped the Fifth Schedule and the TACs.
• The Sub-committee worked under Sardar Patel's Advisory Committee.
• Jaipal Singh Munda pressed for real protection of adivasi land and adivasi ways of life.

• The Fifth Schedule reflects protection plus integration, which matches Nehru's later "tribal Panchsheel" (1959).

• Linked articles:

• Art. 339(1): The President may at any time appoint a commission on Scheduled Areas and ST welfare, and had to do so within 10 years of 1950.
  • The Dhebar Commission (1960-61) was the first [3][5].
  • The Bhuria Commission was the second. It was constituted on 27 June 2002 under Dilip Singh Bhuria and reviewed the Tribal Sub-Plan approach [4]. It also checked how the Dhebar Commission's advice had been carried out [5]. It reported in 2004.
• Art. 339(2): The Union can direct a state to make and carry out schemes for ST welfare.
• Art. 275(1), first and second provisos: The Union pays grants-in-aid to states for ST welfare. The grants also help raise the standard of administration in Scheduled Areas.

• Art. 164(1) proviso: Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha must have a minister for tribal welfare. The 94th Amendment, 2006 replaced Bihar with Chhattisgarh and Jharkhand.

• Panchayats: Village self-government in Scheduled Areas runs under PESA, 1996, which extends panchayats to Scheduled Areas with tribal-specific changes.

• In practice:
• Governors have rarely used para 5 to block a harmful law.
• TACs meet rarely.

• The Governor's annual reports are often late and routine.

• Landmark case – Chebrolu Leela Prasad Rao v. State of Andhra Pradesh (2020):

• The order: An Andhra Pradesh order (G.O.Ms. No. 3 of 2000) reserved 100% of teacher posts in Scheduled Area schools for local ST candidates.
• The judgment: A 5-judge Constitution Bench struck the order down. It said the order violated Articles 14 and 16 (equality, and equal chance in public jobs). It added that para 5 cannot override Part III.

• What was saved: Teachers already appointed kept their jobs, but the state was warned not to repeat such an order.

• Land laws that use these protections:

• A.P. Scheduled Areas Land Transfer Regulation, 1959, as amended by Regulation 1 of 1970 (the "1/70" law). It bars the transfer of land in Scheduled Areas to non-tribals.
• Chhotanagpur Tenancy Act, 1908 and Santhal Parganas Tenancy Act, 1949 in Jharkhand. They limit the sale of tribal land.
  • 2016: The state passed amendment bills to allow tribal land to be used for "development".
  • Large adivasi protests followed.
  • 2017: The Governor returned the bills without giving assent.

Don't confuse with

• Sixth Schedule: It covers only Assam, Meghalaya, Tripura and Mizoram (Art. 244(2)). Its tribal areas have elected autonomous district councils that make some laws themselves. The Fifth Schedule has no such councils. Its TAC is only advisory, and the real power lies with the Governor.
• Scheduled Tribes (Art. 342): STs are communities, while Scheduled Areas are territory. A state can have STs but no Scheduled Area, for example Tamil Nadu or West Bengal.
• Amendment under Article 368: Changing the Fifth Schedule needs only an ordinary law passed by simple majority (para 7). It is not an Article 368 amendment.
• Excluded areas (1935 Act): These were run in the Governor's discretion and broadly became Sixth Schedule areas. Partially excluded areas were run under the Governor's individual judgement and broadly became Fifth Schedule areas.

Prelims Hooks

• Art. 244(1) → Fifth Schedule (Scheduled Areas). Art. 244(2) → Sixth Schedule (Assam, Meghalaya, Tripura and Mizoram).
• The President declares, enlarges or rescinds a Scheduled Area by order (para 6). Enlarging one needs consultation with the Governor. No Act of Parliament is needed.
• TAC: at most 20 members, about three-fourths of them ST MLAs. It is mandatory in all ten Scheduled Area states. West Bengal, Tamil Nadu and Uttarakhand have a TAC but no Scheduled Area [2].
• Para 5 regulations can cover land transfer, land allotment and money-lending. They need TAC consultation and Presidential assent.
• Art. 339 commissions: Dhebar (1960-61) was the first, and Bhuria (constituted 2002) was the second [3][4].
• Trap: The Art. 164(1) proviso tribal-welfare minister is required in Chhattisgarh, Jharkhand, MP and Odisha (94th Amendment, 2006). Bihar is no longer on the list.

Mains Points

• Strong design, weak use:
• Para 5 lets the Governor block harmful laws and protect tribal land. Yet it is almost never used, and TACs are only advisory and meet rarely.

• Reforms:

  • fix time limits and publish agendas for TAC meetings;
  • make the Governor's annual report public and debate it in Parliament;
  • make clear whether the Governor uses para 5 in discretion or on ministers' advice.

• Protection versus equality:

• Chebrolu (2020) shows that special protection for tribes must still respect Articles 14 and 16.

• The Fifth Schedule shields tribal land and autonomy. It does not allow other groups to be shut out completely.

• Centre-state balance and development:

• Para 3, para 6 and Art. 339(2) let the Union direct states on tribal matters. This treats tribal protection as a national duty, but the Union has rarely used these powers, even during land loss and displacement.
• The CNT/SPT protests of 2016-17 show the ongoing clash between "development" and tribal control over land.
• The path from colonial isolation, to Nehru's integration, to self-rule under PESA 1996 is a useful frame for the answer.

Related concepts

• Excluded and partially excluded areas
• Thakkar Sub-committee
• Scheduled Areas
• Tribes Advisory Council
• Dhebar Commission

Read more

• Tribal areas in the Constitution: colonial legacy and the Fifth Schedule