Law and You > Constitutional Law > The Scheduled and Tribal Areas
Although the Constitution of India seeks to provide a uniform rule over the whole country, certain areas of the country are governed by special provisions. At the time of the framing of the Constitution, the framers of the Constitution took note of the fact that certain areas and communities in the country on account of their isolated and primitive lifestyle need special consideration for safeguarding their interests and advancing their socio-economic development. Article 244 in Part X of the Constitution envisages a special system of administration of areas notified as “Scheduled Areas” and “Tribal Areas”. Article 275(1) of the Constitution also guarantees funds to both the Fifth and Sixth Scheduled Areas from the Consolidated Fund of India as grants-in-aid for the purpose of promoting the welfare of the Scheduled Tribes or raising the level of administration of the Scheduled and Tribal Areas. Under Article 339 (1) of the Constitution, the President may also appoint a Commission to report on the administration of the Scheduled Areas and welfare of the Scheduled Tribes in the states.
Need of Special Provisions for Scheduled and Tribal Areas:
Scheduled areas are inhabited by people who are socially and economically backward. Though they constitute a part of the country, it is the responsibility of the government to make special efforts needed to improve their condition. Similarly, the Tribes of Assam, Meghalaya, Tripura, and Mizoram have not absorbed the way of life of the other people of the state with time. Somehow, the tribal areas of other states have adopted the culture of other people more or less but tribes from such north-eastern states stand connected to their own traditions, culture, and custom. Hence such areas are treated differently and our constitution has provided sufficient provisions to provide them a sizable amount of autonomy to practice their own way of life without hurting the unity of the country.
Consequently, when the Constitution was adopted, it envisaged for the creation of a grass-root level administrative mechanism for the administration of Scheduled Areas and Tribal Areas in different parts of the country. In doing so, the provisions of the Fifth and Sixth Schedules were incorporated in order to protect the aspirations of the people of the areas and simultaneously assimilate them into the mainstream of the country
The Scheduled Areas:
Article 339 of the Indian Constitution mentions the Union government’s control over the Scheduled Areas administration and welfare of the Scheduled Tribes. The first commission to report on the administration and welfare of the Scheduled Areas was established in 1960 and was headed by U N Dhebar. Another commission was set in 2002 headed by Dilip Singh Bhuria. Part X of the Indian Constitution entails the provisions related to Scheduled and Tribal Areas with Articles 244 – 244 A.
Scheduled Areas:
Article 244 (1) of the Indian Constitution defines Scheduled Areas as the areas defined so by the President of India and are mentioned in the fifth schedule of the Constitution. There are 10 states having 5th scheduled areas: namely, Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana.
The 5th Schedule deals with administration & control of scheduled areas & scheduled tribes in any state except 4 states of Assam, Meghalaya, Tripura & Mizoram. (AMTM). Because of the different socio-economic profile of scheduled areas these areas need special attention & the Central Government has greater responsibility for such areas.
Criteria for the Declaration of the Scheduled Area:
- Prominent numbers of tribal population, i.e. when tribal people are in majority in an area
- Compactness and reasonable size of the area
- A viable administrative entity such as a district, block or taluk, and
- Economic backwardness of the area as compared to the neighbouring areas.
Power of President:
The President may at any time by order:
- declare an area as Scheduled Area
- direct that the whole or any specified part of a Scheduled Area shall cease to be a Schedule Area or a part of such an area;
- increase the area of any Scheduled Area in a state after consultation with the Governor of that State;
- alter the boundaries of a State 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 of 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.
Both the Centre and the State have their roles to play in the administration of the Scheduled areas. While the governor of the state has to report annually to the President over the management of such area, the Centre gives directions to the state regarding the administration of such areas.
Power and Duties of Governor:
The Governors of the States having Scheduled Areas are empowered to exercise extensive power and functions to discharge for the administration and control of the Scheduled Areas. The Governors of these states are required to submit a report to the President annually or whenever so required by 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 respective States for the administration of the Scheduled Areas (Part A, Para 3). The Governor is authorised to direct the State government by public notification not to apply any Act of Parliament or of the State Legislature to a Scheduled Areas or apply it subject to exceptions or modifications (Part B, Para 5(1)). The Fifth Schedule assigns special responsibilities to the Governors for ensuring peace and good governance in the Scheduled Areas. For this, as per the provision under Para 5(2), the Governor can make regulations in the Scheduled Areas particularly for the following purposes:
- to prohibit or restrict the transfer of land by or among the members of Scheduled Tribes in such areas,
- to regulate the allotment of land to members of the Scheduled Tribes,
- to regulate the carrying on of business as money-lenders by persons who lend money to members of the Scheduled Tribes in such area
Administration of Scheduled Areas:
Under Para 4 in part B of the Fifth Schedule, each state having Scheduled Areas has the constitutional obligation to constitute a Tribes Advisory Council. It has 20 members (Three-Fourth of which are Scheduled Tribes’ representatives in that state legislative assembly.) As per the provisions are given in Para 4(2) of the Fifth Schedule, the primary duty of the Tribes Advisory Council is to advise the State Government on matters related to the welfare and advancement of Scheduled Tribes in the state or on any matter which may have been referred to them by the Governor.
Drawbacks Associated with the Fifth Schedule:
- The implementation of laws and regulations in Scheduled Areas has often been inconsistent and ineffective.
- There is a lack of uniformity in governance and protection of Scheduled Tribes’ rights.
Tribal Area:
The Sixth Schedule under Article 244 (2) of the Constitution relates to those areas in the States of Assam, Meghalaya, Tripura and Mizoram which are declared as “tribal areas” and provides for District or Regional Autonomous Councils for such areas. Sizeable amount of autonomy has been given to the people belonging to the tribal areas of these four states to govern themselves.
The 6th Schedule deals with administration of tribal areas in 4 NE states of Assam, Meghalaya, Tripura & Mizoram. (Not Manipur). Such arrangements have been made to protect the culture, customs & civilizations of peoples of such areas who still have not assimilated the life of majorities in such areas. The tribal areas in these four states come under the name of ‘Autonomous Districts,’ but the state still has its executive authority over them.
The tribal areas in the four states are given below:
- Assam: North Cachar Hills District, The Karbi Anglong District, and The Bodoland Territorial Areas District
- Meghalaya: Khasi Hills District, Jaintia Hills District, and The Garo Hills District
- Tripura: Tripura Tribal Areas District
- Mizoram: The Chakma District, The Mara District, and The Lai District
Power of Governor:
The power to organise and reorganise the tribal areas as autonomous districts lie with the governor of the state. He can also alter the name, boundary of such tribal areas. One autonomous district can have different tribes, which for better administration is divided into autonomous regions by the governor. Governor can appoint a commission to examine & report on any matter relating to administration of autonomous regions & can even dissolve District & Regional Council on recommendation of such commission.
Administration of Tribal Area:
There is a district council for each autonomous district. It has 30 members. Four are nominated by the governor. They perform their duties during the pleasure of the governor. 26 are elected using the adult franchise. Their term of office is five years. There is a separate regional council for each autonomous district.
Legislative Functions:
The laws related to the following can be made by the regional and autonomous councils with the assent of the governor: Land, Forests, Canal water, Shifting cultivation, Village administration, Inheritance of property, Marriage and divorce, and Social customs. Under Para 10 of the Schedule, the District Council of an Autonomous District has the power to make law for the regulations and control of money-lending or trading by any person other than Scheduled Tribe residents in that Scheduled District. However, all laws made under this provision shall have no effect until assented by the Governor of the State.
Executive Power:
The District Councils and Regional Councils are given the power to establish, construct or manage primary schools, dispensaries, markets, cattle ponds, fisheries, roads, road transport and waterways in the districts. The Councils are also authorized to prescribe the language and manner of instruction in the primary schools.
Judicial Powers:
The District and Regional Councils are also empowered to constitute Village and District Council Courts for trial of suits and cases where all parties to the dispute belong to Scheduled Tribes within the district. And no other courts except the High Courts and the Supreme Court has the jurisdiction over such suits or cases of the Council Courts. However, these Council Courts are not given the power to decide cases involving offences punishable by death or imprisonment for five or more years.
Financial Powers:
District and Regional Councils are empowered to prepare a budget for their respective Council. Under Para 8 of the Sixth Schedule, District and Regional Councils are empowered to assess and collect land revenue and impose taxes on professions, trades, animals, vehicles, taxes on entry of goods into the market for sale, toll on passengers and goods carried in ferries and taxes for the maintenance of schools, dispensaries or roads within their respective jurisdiction. And under Para 9 of the Schedule, the Councils are given the power to grant licenses or leases for extraction of minerals within their jurisdiction.
Distinguishing Between Scheduled Area and Tribal Area:
| Scheduled Area | Tribal Area |
| Article 244(1) of the Indian constitution has mentioned scheduled areas. Special provisions for the administration of such areas are mentioned in the 5th schedule of the constitution and include certain areas in States other than Assam, Meghalaya, Tripura, and Mizoram. | The tribal area was mentioned in Article 244(2) of the Indian constitution. Provision regarding their administration is found in the 6th schedule. It deals with the tribal areas in Assam, Meghalaya, Tripura, and Mizoram. |
| Provision regarding administration and control of Scheduled Area is mentioned in the 5th schedule of the constitution. | Provision regarding administration and control of Tribal Area is mentioned in the 6th schedule of the constitution. |
| The power to declare any area as a ‘Scheduled Area’ is bestowed on the President of India and the parliament is authorized to legislation. President can alter, increase, or decrease its boundary lines in consultation with the Governor of the state. | The organization and reorganization of the autonomous district can be done by the Governor of the state concerned including increasing or decreasing the area and changing the boundary lines. |
| Regulations made by the Governor must be implemented after the assent of the President. | On the matters over which the council is empowered to make law, the law of state legislature over such topics cannot be extended to such areas without the approval of councils. The Governor must approve the law made by the council of the State. |
| Provisions related to the administration of Scheduled areas and tribes can be amended by Parliament with ordinary legislation. This means it does not require a constitutional amendment | Concerning other matters, President with respect to the central act, and Governor with respect to the state act may direct that an act of parliament or state legislature shall not extend or shall be extended with reasonable exceptions to any autonomous district. |
Drawbacks Associated with the Sixth Schedule:
- It has created multiple power centres instead of bringing in a genuine process of autonomy in the region.
- There are frequent conflict of interests between the District Councils and the State Legislatures.
- Demand for special provisions for other groups.
- In terms of financial autonomy, there is a huge gap between the approved budget and the funds received from the state government which has a direct impact on the development of the tribal communities.
Conclusion:
There are certain regions in India, which are governed by special provisions under the Fifth and Sixth Schedules of the Constitution. These areas are the hill regions of North-East India, and the tribal inhabited “Scheduled Areas” in the states other than the North-Eastern states of Assam, Meghalaya, Mizoram and Tripura. The Fifth and Sixth Schedules of the Constitutions have the special provisions for the administration of Scheduled Areas and Tribal Areas in the country. These special provisions are meant to protect the cultural identities and the rights of the tribal inhabitants of the concerned regions, especially from the encroachment and cultural, economic and political exploitation by the outsiders. While the provisions of the Fifth Schedule cover the tribal populated regions of the country known as Scheduled Areas, and provide protection to them, the Sixth Schedule of the Constitution provided legislative, administrative, judicial, and financial powers in the Tribal Areas of Assam, Meghalaya, Mizoram and Tripura through the Autonomous District Councils and Regional Councils.