Scheduled Areas

Also called: Fifth Schedule areas · Topic: Special Provisions, Scheduled and Tribal Areas · NCERT: Class 7, Ch 6 "The State, the Government, and You"

Meaning

Scheduled Areas are areas that the President declares by order under the Fifth Schedule (Art. 244(1)). They are mostly tribal areas in states other than Assam, Meghalaya, Tripura and Mizoram, which come under the Sixth Schedule. In these areas, the Governor has special powers to protect Scheduled Tribes (STs).

They matter because land is the main source of a tribal family's living. The Fifth Schedule lets the state stop tribal land, forests and savings from passing to outsiders, while these areas stay part of the normal state.

Explanation

How an area becomes a Scheduled Area (para 6)

Each step below happens by presidential order. It is an executive order, so Parliament does not vote on it.

1. Declare: The President declares an area a Scheduled Area by order. The first orders were the Scheduled Areas (Part A States) Order and the (Part B States) Order of 1950. Later orders were made state by state.
2. Rescind: The President can cancel (rescind) an order at any time, for the whole area or only a part of it.
3. Increase: The President can make a Scheduled Area bigger, but only after consulting the Governor of the state.
4. Alter: The President can change boundaries, but only to rectify (correct) them.
5. New state boundaries: If a state's borders change, the President can make a fresh order after consulting the Governor.

Who decides which areas qualify: the Dhebar criteria

The Dhebar Commission (1960-61), chaired by U.N. Dhebar, was the first commission under Art. 339 [3][5]. It set these tests:

• Preponderance (a clear majority) of tribal people;
• Compactness and reasonable size of the area;
• a viable administrative unit, such as a district, block or taluk;
• marked economic backwardness compared with nearby areas.
• Limit: The areas should be as limited as strictly necessary. They should cover only what tribal people really need, but be big enough for special laws and special administration to work [3].
• Today: Ten states have Scheduled Areas: Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan [2].

The Governor's protective powers (para 5)

• 5(1), keeping laws out: By public notification, the Governor can direct that an Act of Parliament or of the state legislature:
• will not apply to a Scheduled Area; or
• will apply only with exceptions and modifications (changes).

• This can even be done with retrospective effect (going back in time).

• 5(2), making special rules: The Governor can make regulations for peace and good government of the area. In particular, these regulations can:

• prohibit or restrict transfer of land by or among STs;
• regulate allotment of land to STs;

• regulate money-lending to STs.

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

• Steps for a para 5 regulation: 1. The Governor consults the Tribes Advisory Council (TAC). This is compulsory wherever a TAC exists. 2. The Governor makes the regulation. 3. The regulation goes to the President at once. 4. It has no effect until the President assents (gives approval).

Other parts of the design and their limits

• Para 3, Governor's report: The Governor reports to the President every year, or whenever the President asks, on how the area is run. The Union can give directions to the state on running these areas. This gives the Centre a bigger role in a matter that would normally belong to the state.
• Para 4, Tribes Advisory Council (TAC) (an advisory body that guides the Governor on ST welfare):
• It has not more than 20 members. As nearly as possible, three-fourths of them must be ST MLAs [2].
• It is mandatory in every state with Scheduled Areas [2].

• It advises only on matters the Governor refers to it [2].

• Para 7, amendment: Parliament can change the Fifth Schedule by ordinary law (simple majority). Such a law is not counted as an amendment under Art. 368.

• Limit set by the courts: The Governor's para 5 power is subject to Fundamental Rights (Part III). See Chebrolu (2020) below.

In the Constitution and practice

• Where it sits:
• Art. 244(1) and the Fifth Schedule (paras 3-7) cover Scheduled Areas.

• Art. 244(2) and the Sixth Schedule cover the Tribal Areas of Assam, Meghalaya, Tripura and Mizoram.

• Colonial roots:

• Scheduled Districts Act, 1874: some districts were "scheduled districts", where ordinary laws did not apply automatically.
• GoI Act 1919: brought in the term "backward tracts".
• GoI Act 1935 (ss. 91-92): created partially excluded areas, run under the Governor's individual judgement (he asked his ministers but could overrule them). These broadly became Fifth Schedule areas.

• Under the British, keeping these areas apart was a way to control them, not to give them self-rule.

• Constituent Assembly:

• The Thakkar Sub-committee (1947), under A.V. (Thakkar Bapa) Thakkar, studied excluded and partially excluded areas outside Assam. Its report shaped the Fifth Schedule and the TACs.
• It worked under Sardar Patel's Advisory Committee.

• Jaipal Singh Munda asked for real protection of adivasi land.

• Linked articles:

• Art. 339(1): the President must appoint commissions on Scheduled Areas and ST welfare. The Dhebar Commission (1960-61) was the first [3]. The Bhuria Commission, under Dilip Singh Bhuria, was the second. It was constituted on 27 June 2002 and reported in 2004 [4][5].
• Art. 339(2): the Union can direct a state to carry out schemes for ST welfare.
• Art. 275(1) provisos: the Union gives grants-in-aid to raise the level of administration in Scheduled Areas.

• Art. 164(1) proviso: a tribal welfare minister is required in Chhattisgarh, Jharkhand, MP and Odisha (94th Amendment, 2006).

• Land laws in practice:

• A.P. Scheduled Areas Land Transfer Regulation, 1959, amended by Regulation 1 of 1970 ("1/70"). It bars the transfer of land in Scheduled Areas to non-tribals.

• CNT Act 1908 and SPT Act 1949 (Jharkhand): in 2016, the state passed amendment bills to allow tribal land to be used for non-farm purposes. Large adivasi protests followed, and in 2017 the Governor returned the bills without assent.

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

• Facts: A Governor's order (G.O.Ms. No. 3 of 2000) reserved 100% of teacher posts in Scheduled Area schools for local STs.
• Held: A 5-judge Constitution Bench struck the order down because it violated Arts. 14 and 16.

• Principle: Para 5 lets the Governor modify laws. It does not let the Governor override Part III.

• How it works in practice:

• Governors have rarely used para 5.
• TACs meet rarely.
• The annual reports are often late and routine.
• In practice, the state government drives decisions, so the Governor seldom acts as an independent "guardian".

Don't confuse with

• 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.
• Tribal Areas (Sixth Schedule, Art. 244(2)): these are only in Assam, Meghalaya, Tripura and Mizoram, and are run by elected autonomous district councils. Fifth Schedule areas have no such councils. Instead, the Governor holds the protective powers.
• Tribes Advisory Council: a TAC can exist without any Scheduled Area. West Bengal, Tamil Nadu and Uttarakhand have one on the President's direction [2]. So having a TAC does not prove a state has Scheduled Areas.
• Partially excluded areas (GoI Act 1935): these were colonial areas kept outside elected legislatures for control. Scheduled Areas are part of the normal state, with extra protection added.

Prelims Hooks

• Art. 244(1) goes with Scheduled Areas and the Fifth Schedule. Art. 244(2) goes with the Tribal Areas of Assam, Meghalaya, Tripura and Mizoram and the Sixth Schedule.
• Scheduled Areas are declared, enlarged or rescinded by presidential order (para 6), not by an Act of Parliament. Enlarging an area needs consultation with the Governor.
• Ten states have Scheduled Areas [2]. Trap: West Bengal, Tamil Nadu and Uttarakhand have TACs but no Scheduled Area.
• A para 5 regulation needs TAC consultation and Presidential assent. It can cover land transfer, land allotment and money-lending.
• Para 7: Parliament amends the Fifth Schedule by simple majority, and this is not an amendment under Art. 368.
• Chebrolu (2020): 100% ST reservation for teachers was struck down, because para 5 cannot override Part III.

Mains Points

• Strong design, weak use:
• Para 5 gives the Governor strong powers to block harmful laws and protect land, but these powers are almost never used.
• TACs only give advice, and only on matters referred to them.

• Reforms:

  • set fixed meeting schedules and public agendas for TACs;
  • publish the Governors' annual reports and debate them in Parliament;
  • make it clear whether the Governor uses para 5 in discretion or on ministers' advice (Art. 163).

• Protection versus equality, and development versus land:

• Chebrolu (2020) shows that tribal protection must still respect Arts. 14 and 16. The Fifth Schedule is a shield, not a licence to shut out every other group completely.

• The CNT/SPT protests (2016-17) show the continuing clash between "development" and tribal control over land.

• Centre's unused role:

• Paras 3 and 6 and Art. 339(2) treat tribal protection as a national duty, and they let the Union direct states.
• Critics say the Union has rarely used these powers, even while land was being alienated and people were being displaced.

Related concepts

• Excluded and partially excluded areas
• Thakkar Sub-committee
• Fifth Schedule
• Tribes Advisory Council
• Dhebar Commission

Read more

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