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

Detail

1. Colonial legacy: how British rules kept tribal areas apart

• Scheduled Districts Act, 1874: The British listed some tribal and remote districts as "scheduled districts".
• The ordinary laws of British India did not apply there automatically.

• The executive (government officers) could decide which laws would apply.

• Government of India Act, 1919: It brought in the term "backward tracts".

• The Governor-General could keep these tracts out of the new reformed provincial legislatures, fully or in part.

• Laws reached these tracts only if the Governor or Governor-General said so.

• Government of India Act, 1935 (ss. 91-92): It made two categories of tribal areas. Both were outside the normal reach of the elected provincial legislatures.

Feature	Excluded areas	Partially excluded areas
Who ran them	The Governor, in his discretion (he did not need to ask ministers)	The Governor, under his individual judgement (he asked ministers but could overrule them)
Where	Mostly the North-East hills, e.g. the Assam hill districts	Tribal pockets in central and eastern India, and some hill areas
Provincial laws	Applied only if the Governor directed	Applied only if the Governor directed, with changes if needed
Later form	Broadly became Sixth Schedule areas	Broadly became Fifth Schedule areas

• Key point: Under colonial rule, isolation was a matter of control. Tribal areas were kept outside representative politics. They were not given self-rule.

2. The Constituent Assembly and the three philosophies

• The Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas was chaired by Sardar Vallabhbhai Patel. It set up two sub-committees:
• Bordoloi Sub-committee: Chaired by Gopinath Bordoloi. It dealt with the North-East Frontier (Assam) Tribal and Excluded Areas. Its report led to the Sixth Schedule (autonomous district councils, the self-governing elected bodies of the hill districts).

• Thakkar Sub-committee (1947): Chaired by A.V. (Thakkar Bapa) Thakkar. It studied the excluded and partially excluded areas outside Assam. Its report shaped the Fifth Schedule and the Tribes Advisory Councils.

• Jaipal Singh Munda was the adivasi voice in the Assembly. He called the adivasis the oldest people of India and asked for real protection of their land and their way of life.

• Three philosophies were in contest:
• Isolation: This was Verrier Elwin's early position. Tribes should be shielded from outsiders, traders and missionaries, like a "national park".
• Assimilation: Tribes should be absorbed into mainstream Hindu or peasant society.

• Integration on tribal terms: This was Nehru's "tribal Panchsheel", set out in his foreword to Elwin's A Philosophy for NEFA (1959). It has five principles:

  1. People should develop along the lines of their own genius. Nothing should be imposed on them.
  2. Tribal rights in land and forests should be respected.
  3. Their own people should be trained to run administration and development. Outsiders should be few.
  4. The areas should not be over-administered or flooded with schemes.
  5. Results should be judged by the quality of human character that develops, not by the money spent.

• The Fifth Schedule reflects protection plus integration. Scheduled Areas remain part of the normal state. The Governor, however, holds special protective powers.

3. Scheduled Areas: what they are and how they are declared

• Scheduled Areas (Art. 244(1)): These are areas declared by the President under the Fifth Schedule.
• They lie in states other than Assam, Meghalaya, Tripura and Mizoram. Those four states come under the Sixth Schedule (Art. 244(2)).

• Fifth Schedule: This is the part of the Constitution that sets out how Scheduled Areas are run and controlled.

• Declaration procedure (para 6): 1. The President declares an area a Scheduled Area by order. The Scheduled Areas (Part A States) Order and the (Part B States) Order of 1950 were the first such orders. Later orders were issued state by state. 2. The President may at any time rescind (cancel) an order, fully or for part of an area. 3. The President may increase a Scheduled Area, but only after consulting the Governor of the state. 4. The President may alter boundaries, but only by rectifying (correcting) them. 5. When a state's boundaries change, the President may make a fresh order after consulting the Governor.

• No parliamentary vote is needed. It is an executive order.

• Dhebar Commission (1960-61): It was chaired by U.N. Dhebar and was the first commission under Art. 339 [3][5]. It set the criteria for Scheduled Areas:

• preponderance (clear majority) of tribal population;
• 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.

• The Commission also said the areas should be kept as limited as strictly necessary. They should cover only what the tribal population really needs, and be large enough for special laws and special administration to work without trouble [3].

• Ten states have Scheduled Areas [2]: Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan.

• Do not confuse the two ideas:

	Scheduled Areas	Scheduled Tribes
What	A territory	Communities
Article	Art. 244(1) and the Fifth Schedule (para 6)	Art. 342
Who notifies	President by order, after consulting the Governor before enlarging	President by order for each state; Parliament can add or remove tribes by law
Example trap	A state can have STs but no Scheduled Area, e.g. Tamil Nadu or West Bengal	STs live in non-Scheduled Areas too

4. The governance design of the Fifth Schedule

• 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 being run.

• The Union's executive power covers giving directions to the state on running these areas. This is a clear tilt towards the Centre in a federal matter.

• Para 4 – Tribes Advisory Council (TAC):

• TAC: an advisory body that guides the Governor on ST welfare.
• Composition: 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 with Scheduled Areas. TACs exist in all ten such states [2].
• Optional, on the President's direction, in states that have STs but no Scheduled Areas. West Bengal, Tamil Nadu and Uttarakhand have TACs even though they have no notified Scheduled Area [2]. (NCERT-derived list: Tamil Nadu and West Bengal.)

• Duty: to advise on ST welfare and advancement, on matters the Governor refers to it [2]. The Governor makes rules on the number of members, how they are appointed, who chairs the Council, and how it conducts its work.

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

• 5(1): By public notification, the Governor can direct that any Act of Parliament or of the state legislature will not apply to a Scheduled Area, or will apply only with exceptions and modifications. This can also be done with retrospective effect.
• 5(2): The Governor can make regulations for peace and good government of a Scheduled Area. In particular, regulations may:
  • prohibit or restrict transfer of land by or among STs;
  • regulate allotment of land to STs;
  • regulate money-lending to STs.
• 5(3): Such regulations may repeal or amend any Act of Parliament or of the state that applies to the area.

• Procedure for 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.

• Para 7 – Amendment: Parliament can add to, change or repeal the Fifth Schedule by ordinary law (simple majority).

• Such a law is not deemed an amendment under Art. 368. So no special majority and no state ratification are needed.

• Other linked articles:

• Art. 339(1): The President may at any time, and had to by the end of 10 years from 1950, appoint a commission on the administration of Scheduled Areas and ST welfare.
  • Dhebar Commission (1960-61): the first.
  • Bhuria Commission: the second. It was constituted on 27 June 2002 under Dilip Singh Bhuria and had 11 members. It was asked to review development strategies, including the Tribal Sub-Plan approach, and to suggest ways to strengthen administration in Scheduled and tribal areas [4]. It also reviewed how the Dhebar Commission's recommendations had been carried out [5]. It reported in 2004.
• Art. 339(2): The Union can direct a state to draw up and carry out schemes it marks as essential for ST welfare.
• Art. 275(1), first and second provisos: The Union pays grants-in-aid from the Consolidated Fund of India to states for ST welfare schemes approved by the Centre. These grants also help raise the level of administration in Scheduled Areas to that of the rest of the state.
• Art. 164(1) proviso: There must be a minister in charge of tribal welfare in Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha. The 94th Amendment, 2006 replaced Bihar with Chhattisgarh and Jharkhand. This minister may also handle welfare of SCs and backward classes.

5. Working in practice and case law

• Powers mostly unused:
• Governors have rarely used para 5 to block or modify a harmful law.
• TACs meet rarely and only discuss what is referred to them.

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

• Who really decides?

• There is a debate over whether the Governor acts alone (discretion) or on the advice of ministers under Art. 163 when using para 5.

• In practice, the state government drives the decisions. This weakens the idea of the Governor as an independent "guardian" of tribal interests. (The Xaxa Committee 2014 recommendations are covered under vulnerable-sections-safeguards.)

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

• Facts: A Governor's order in Andhra Pradesh, G.O.Ms. No. 3 of 2000, reserved 100% of teacher posts in Scheduled Area schools for local ST candidates.
• Held: A 5-judge Constitution Bench struck the order down.
  • Para 5(1) lets the Governor modify laws. It does not let the Governor override Fundamental Rights (Part III).
  • 100% reservation violates Arts. 14 and 16 (equality, and equal opportunity in public jobs). It is also unfair to other reserved groups, such as SCs and OBCs.
  • Appointments already made were protected. The Court warned the state not to repeat such an order.

• Exam takeaway: The Governor's Fifth Schedule power is subject to Part III.

• Land laws that put para 5 and similar protections into practice:

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

Prelims Hooks

• Art. 244(1) → Scheduled Areas (Fifth Schedule). Art. 244(2) → Tribal Areas of Assam, Meghalaya, Tripura and Mizoram (Sixth Schedule).
• Ten states have Scheduled Areas. West Bengal, Tamil Nadu and Uttarakhand have a TAC but no Scheduled Area [2].
• TAC: max 20 members, three-fourths ST MLAs. It is mandatory only where Scheduled Areas exist [2].
• Scheduled Areas are declared, enlarged or rescinded by presidential order (para 6), not by a law of Parliament. Enlarging requires consulting the Governor.
• Para 7: Parliament amends the Fifth Schedule by simple majority. This is not an amendment under Art. 368.
• Para 5 regulations need TAC consultation and Presidential assent. They can cover land transfer, land allotment and money-lending.
• Art. 339 commissions: Dhebar (1960-61), the first; Bhuria (constituted 2002), the second [3][4].
• Government of India Act 1935, ss. 91-92: excluded areas were run in the Governor's discretion; partially excluded areas under his individual judgement.
• Chebrolu Leela Prasad Rao (2020): 100% ST reservation for teachers was struck down. Para 5 cannot override Part III.
• Art. 164(1) proviso: a tribal welfare minister in Chhattisgarh, Jharkhand, MP and Odisha (94th Amendment, 2006). Trap: Bihar is no longer on the list.

Mains Points

• Protective design, weak use: Para 5 gives the Governor strong power to block harmful laws and protect land. But this power is almost never used, and TACs are only advisory and meet rarely. Reform ideas:
• set clear time limits and published agendas for TAC meetings;
• make Governors' annual reports public and debate them in Parliament;

• clarify by convention or law whether the Governor uses para 5 in discretion.

• Centre–state balance: Paras 3 and 6 and Art. 339(2) let the Union direct states on tribal administration. This shows that tribal protection was treated as a national duty. Critics say the Union has rarely used these powers, even when land was being alienated or people displaced.

• Rights versus protection: Chebrolu (2020) shows that special protection for tribes must still fit within equality under Arts. 14 and 16. The Fifth Schedule is a shield for tribal land and autonomy. It is not a licence for total exclusion of other groups.
• Isolation, assimilation or integration: The move from colonial "excluded areas" to Nehru's Panchsheel to self-rule under PESA 1996 is a useful frame for a GS-I or GS-II answer. The CNT/SPT protests of 2016-17 show the ongoing clash between "development" and tribal control over land.