Fifth Scheduled Areas - Scheduled and Tribal Areas

Most of the tribes in India are collectively identified under Article 342(1) and (2) of the Constitution as Scheduled Tribes. Article 244 (Administration of Scheduled and Tribal Areas) of Part X of the Constitution grants them overarching immunity to the extent of substantial right to self-determination. Scheduled areas have the highest forest coverage and are rich in minerals. It has been seen that the business potential of scheduled areas leads the corporate sector to lobby intensively with the state government for decisions in its favour and high profits. It affects the environment and livelihood of tribal communities.

Scheduled Areas:

• In this Constitution, the expression “Scheduled Areas” means such areas as the President may by order declare to be Scheduled Areas.
• The President may at any time by order:

• 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; increase the area of any Scheduled Area in a State after consultation with the Governor of that State;
• 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 of States, any order or orders made under these provisions and in consultation with the Governor of the State concerned, make fresh orders redefining the areas which are to be Scheduled Areas.

Criteria for Scheduled Areas:

• The presence of a large tribal population.
• The area's compactness and suitable size.
• A functional administrative unit, such as a district, block, or taluk.
• Economic backwardness of the area as compared to the neighbouring areas.

Fifth Schedule:

• Between September 5-7, 1949, the Constituent Assembly discussed and passed the Fifth and Sixth Schedules. The Fifth Schedule deals with administration of scheduled areas where tribal communities are in a majority.
• Fifth schedule applicable in all the other identified tribal regions, guarantees tribal autonomy and tribal rights over land through a Tribal advisory council in each State.
• In India, there are 10 states having scheduled areas namely:
• Himachal Pradesh, Rajasthan, Gujarat, Maharashtra, Andhra Pradesh, Telangana, Odisha, Jharkhand, Chhattisgarh and Madhya Pradesh.

Constitutional Provision of fifth Schedule:

• Article 244(1) provides that 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.
• The Union government has jurisdiction for the management of Scheduled Areas and the welfare of Scheduled Tribes, according to Article 339 of the Indian Constitution.

Administration of Scheduled Areas:

• The various provisions of administration of Scheduled Areas contained in the fifth Scheduled are:
• The executive power of the state extends to the scheduled areas therein. In the administration of Scheduled Areas, both the Centre and the States have duties to play. The Centre gives the state instructions on how to administer these areas.
• Report by Governor to the President: The Governor of each state having scheduled areas therein has to submit a report to the President annually or whenever so required by the President. The executive power of the Union extends to giving direction to the state regarding the administration of such areas.
• Law applicable to Scheduled Areas: Governor is empowered to direct that any particular act of parliament or state government does not apply to scheduled areas or if applied, then with specific modifications & exceptions.
• 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.
• Panchayati Raj and Municipalities Act not to extend automatically.

The Tribal Advisory Council:

• It consists of not more than 20 members, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State.

• In the case of conditions of seats is not fulfilled: 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.
• It should be established in each state having scheduled areas therein. They are constitutional bodies formed to deal with welfare and advancement of scheduled tribes in states.
• The Governor may make rules prescribing or regulating, as the case may be,
• 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;
• the conduct of its meetings and its procedure in general; and
• all other incidental matters.
• Duty of Tribal 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.

Appointment of Commission:

• The Constitution provides for the appointment of a Commission to report on the administration of the scheduled areas and welfare of scheduled tribes in the states. He can appoint such a commission at any time but compulsorily after 10 years from the commencement of Constitution [Article 339(1)].
• The first commission to report on the administration and welfare of the Scheduled Areas was established in 1960 and was headed by UN Dhebar.
• The second commission was appointed in 2002 under the chairmanship of Dilip Singh Bhuria.

Concern Associated to Fifth Schedule Area:

• The Fifth Schedule promotes Scheduled Tribes' welfare and advancement, as well as the administration of scheduled areas. It gives the governor of a state with scheduled areas extraordinary powers of governance. In practice, however, despite the recommendations of several groups, the extraordinary legislative and executive gubernatorial powers have been rarely used.
• Conflict of Interest: State cabinet (highest decision making body in the State) and the Tribal Advisory Council are headed by the same person, it would then be impossible for the Tribal Advisory Council to overturn a decision taken by the cabinet, even if it were not in the interest of tribal communities in scheduled areas.
• Environmental & Livelihood Concern: Loss of land remains the single biggest cause of deprivation of the livelihoods, lives and homelands of tribals across India. Scheduled areas have the highest forest coverage and are rich in minerals. It has been observed that the corporate sector uses scheduled regions' business potential to press the state government for favourable choices and big earnings. It has an impact on tribal populations' environment and livelihood. The tribal populations have been disproportionately targeted, displacing them from their lands and livelihoods.
• Issue related to PESA: Panchayats (Extension to Scheduled Areas) Act, 1996 was seen as the logical next step in ensuring tribal welfare and accountability in the Fifth Schedule areas. However, it has not been implemented properly. Tribal communities have been gradually denied self-government and rights to their communities' natural resources, which were supposed to be provided under the law.

Conclusion:

• Although special constitutional protections for marginalised groups are necessary to ensure that historical injustices against them.
• To deal with this sensitive subject, the government and other agencies must gain the trust of tribals and non-tribals in the region and instil a sense of security and belonging among them.
• The Fifth Schedule, it is believed, can be transformed into a useful tool for the uplift of STs with a few crucial adjustments.

MCQs - Previous Year

1. The provisions in Fifth Schedule and Sixth Schedule in the Constitution of India are made in order to- (UPSC CSE- 2015)

1. protect the interests of Scheduled Tribes
2. determine the boundaries between States
3. determine the powers, authority and responsibilities of Panchayats
4. protect the interests of all the border States

Answer: (a)

Explanation:

• Fifth Schedule Article 244(1) provides that 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.
• Sixth Schedule Article 244(2) provides that the provisions of the sixth schedule shall apply to the administration of the tribal areas in the state of Assam, Meghalaya, Tripura and Mizoram.
• They are to protect the interest of Scheduled Tribes. Hence statement 1 is correct. Therefore (a) is the correct option.

2. Consider the following statements:

1. The Fifth Schedule of the Constitution of India (dealing with administration and control of scheduled areas and scheduled tribes) is applicable to the state of Jammu & Kashmir.
2. The Sixth Schedule of the Constitution of India (dealing with administration of tribal areas) is not applicable to the state of Jammu & Kashmir.

Which of the statements given above is / are correct?

1. Only 1
2. Only 2
3. Both 1 and 2
4. Neither 1 nor 2

Answer: (b)

Explanation:

• In India, there are 10 states having scheduled areas namely: Himachal Pradesh, Rajasthan, Gujarat, Maharashtra, Andhra Pradesh, Telangana, Odisha, Jharkhand, Chhattisgarh and Madhya Pradesh. Hence statement 1 is incorrect.

• The Sixth Schedule of the Constitution of India (dealing with administration of tribal areas) is not applicable to the state of Jammu & Kashmir. It is applicable to Assam, Meghalaya, Tripura and Mizoram. Hence statement 2 is correct. Therefore (b) is the correct option.