5th and 6th Schedule ~ UPSC Polity Notes - Rau's IAS (2024)

Majority of communities classified as Scheduled Tribes have been living in the hilly and forest regions of the country. They have been living in isolation for generations and evolved culture of their own. They never liked interference of outsiders. After independence, these areas were notified as Scheduled areas as per provisions of the constitution by with various provisions for administration.

Article 244 in Part X of the Constitution envisages a special system of administration of areas notified as “Scheduled Areas” and “Tribal Areas”. According to Article 244(1), the provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any states other than the four North Eastern states of Assam, Meghalaya, Tripura and Mizoram.

Whereas, as per Article 244(2), the tribal-dominated areas in the above four States of Assam, Meghalaya, Tripura and Mizoram are to be administered separately under the Sixth Schedule of the Constitution.

Under Article 244 and the Sixth Schedule, these areas are specified as “Tribal Areas” which are technically different from the “Scheduled Areas” under the Fifth Schedule. Thus, the Fifth and Sixth Schedules of the Constitution have special provisions related to the administration and control of such areas declared as “Scheduled Areas” and “Tribal Areas” respectively

Special provisions

Prior to independence and enactment of the Constitution, the British government’s policy of isolation and non-interference in the affairs of tribal population in different parts of the country has gradually pushed them back into the forest and hills. Due to this isolation, these tribes remained uneducated, poor and underdeveloped.

They were governed by their own customary laws and rituals. While some of them depend on cultivation, the livelihood of many others continued to depend on hunting, food gathering, etc. The ‘land’ and ‘forest’ are, therefore, the two basic resources of tribal livelihood system. They have a great emotional attachment to their land and forest. It gives them equality of status, dignity and means to economic and social empowerment.

As a result, their life and outlook are quite different from those of the people in the rest of the country (particularly, the plain areas). Recognising the constraints imposed by these peculiar social, cultural and ecological environments, the framers of the Constitution considered it necessary to introduce some mechanism to protect their cultural identity, protect them from exploitation and promoted their development.

Constitutional basis for these schedules:

• Article 14 recognises the right to equality before law and equal protection of the law. The Constitutional provisions as well as numerous judicial precedents firmly establish that a mere ‘formal’ equality approach has been rejected. Instead, the Constitution clearly recognises that to be completely meaningful, a ‘substantive’ approach to equality has to be adopted, and therefore the historical discrimination of certain groups and classes must not only be abjured by the state, but concrete steps must be taken to reverse the present consequences of such historical discrimination.
• Article 15 which prohibits discrimination by the state of any citizen on grounds of religion, race, caste, sex, place of birth, or any of them. The Article insists on affirmative action, in the form of special provisions for ‘socially and educationally backward classes of citizens or for Scheduled Tribes’, as a part of this right
• Article 17 (prohibition of untouchability in any form) are instances of specific areas where the Constitution requires the state to take an affirmative and pro-active approach
• Article 38 places a duty on the state to “secure a social order in which justice, social, economic and political, shall inform all the institutions of the national life” and in particular to minimise inequalities in income and eliminate inequalities in status among individuals and amongst groups of people.
• Article 39 contains critical obligations on the state to direct its policy towards what has come to be known as ‘distributive justice’, with respect to adequate means of livelihood, ownership and control of material resources, minimisation of concentration of wealth in the economic system, and so on.
• Article 46 contains an obligation on the state to promote the education and economic interests of weaker sections, in particular the Scheduled Tribes, and also to protect them from social injustice and all forms of exploitation.

The Fifth Schedule

The term “Scheduled Areas” are those that are scheduled as such by a Presidential Order under Paragraph 6 (1) of the Fifth Schedule, which states: “In this Constitution, the expression ‘Scheduled Areas’ means such areas as the President may by order declare to be Scheduled Areas”

The criteria for the declaration of any area as a Scheduled Area under the Fifth Schedule as recommended by the First Scheduled Areas and Scheduled Tribes Commission also known as

Dhebar Commission:

The criteria for the declaration of any area as a Scheduled Area under the Fifth Schedule as recommended by the First Scheduled Areas and Scheduled Tribes Commission also known as Dhebar Commission are:

• Preponderance of tribal population
• Compactness and reasonable size of the area
• Under-developed nature of the area
• Marked disparity in the economic standard of the people.
• A viable administrative entity such as a district, block or taluk

Brief outline of schedule areas:

• Paragraph 1 interprets the expression “State” for the purposes of this Schedule.
• Paragraph 2, Provides that subject to the provisions of the Schedule, executive power of the State extends to the Scheduled Areas located in such State. This provision makes it clear that the power of ‘administration and control’ of the state extends to these areas. It has been held by the courts that the power of ‘administration and control’ referred to in this clause is wide enough to embrace exercise of governmental power of every description – executive, legislative and judicial.
• Paragraph 3 requires the Governor of the State, is vested with enormous legislative powers, to make a report annually, or when required to do so by the President of India, to the President regarding the administration of the Scheduled Area. It further provides that the Executive power of the Central government will extend to the giving of directions to the State government for the administration of these areas. This provision is significant, as it makes a sharp divergence from the non-Scheduled Areas where the executive power of the Centre extends only insofar as the subject matters which fall within its legislative domain under the Seventh Schedule. In Scheduled Areas, however, the executive power of the Central government extends to ALL subject matters, even those which are within the domain of the State government.
• Paragraph 4 provides for the setting up of a Tribes Advisory Council (or ‘TAC’) to be set up in each State where there are Scheduled Areas, and also in those States with a significant tribal population, to give advice on matters relating to the welfare and advancement of the Scheduled Tribes in these States. The TAC should have not more than twenty members, of whom at least three-fourths must be drawn from the elected representatives of the Scheduled Tribe communities in the State Legislature. Further, if the number of elected representatives is less than twenty, then the remaining seats can be filled with other members of the Tribal communities.
• Under Paragraph 5 the Governor has been empowered to direct, by public notification that any particular Act of Parliament or of the State Legislature shall not apply to the Scheduled Area of that state or shall apply subject to exceptions and modifications. It also empowers the Governor to make Regulations to restrict or prohibit transfer of land by or among members of Scheduled Tribes, regulate allotment of land, and also moneylending, subject to the assent of the President.
• Paragraph 7 states that provisions in the Fifth Schedule may be amended, altered, or repealed by Parliament, and no such amendment will be construed to be an amendment to the Constitution under Article 368.

Role of Tribes Advisory Council:

• The main function of the TAC is to provide advice to the Governor, when he seeks it, on matters relating to “welfare and advancement of Scheduled Tribes” in the State. Thus, the TAC does not render advice to the Governor Suo motu, but only when asked by him to do so. Such advice is not binding upon the Governor.
• It is, however, compulsory for the Governor to consult the TAC before making any Regulations relating to governance in the Scheduled Areas, including land alienation, land transfer, and control of moneylending Unfortunately, the Tribes Advisory Councils of most States have been quite lack-lustre.
• Recently, the Chhattisgarh Tribes Advisory Council Rules, 2006 were challenged in a writ petition before the Bilaspur High Court. One of the grounds of challenge was the fact that the quorum for a meeting was a mere 5 members (out of a total of twenty) and that the Chief Minister was the Chairperson of the TAC.

The sixth schedule

Considering the distinct life and outlook of the tribals in the North-East (erstwhile State of Assam), the Constituent Assembly recognised the necessity of a separate administrative structure for the tribals in the region.

Therefore, under Article 244(2) of the Constitution, the Sixth Schedule makes special arrangement for the administration of Tribal Areas in the States of Assam, Meghalaya, Mizoram and Tripura. One of the most important provisions of the Sixth Schedule is that the tribal areas are to be administered as Autonomous Districts and Autonomous Regions.

Under the provision of the Sixth Schedule, the Governor of the State is empowered to determine the area or areas as administrative units of the Autonomous Districts and Autonomous Regions. The Governor has the power to create a new Autonomous District/Region or alter the territorial jurisdiction or the name of any Autonomous District or Autonomous Regions.

Administrative set up

The Sixth Schedule has provision for the creation of Autonomous District Councils, and Regional Councils endowed with certain legislative, executive, judicial and financial powers. However, the administrative powers and functions of these District Council and Regional Council differ from State to State.

The Sixth Schedule, each Autonomous District shall have a District Council consisting of not more than thirty members, out of which four are nominated by the Governor while the rest are elected on the basis of adult franchise (Bodoland Territorial Council is an exception; it can have up to forty-six members).

Power of the Autonomous District:

• Legislative Power: Para 3 of the Sixth Schedule provides the provision for the District Council and Regional Councils to make rules in respect of lands, management of forest (other than the Reserved Forest), use of canal or water-course for agriculture, regulation of jhum and other forms of shifting cultivation, establishment and administration of village or town committees, appointment or succession of Chiefs or Headmen, inheritance of property, marriage and divorce and social practice with the prior approval of the Governor. 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 Power: They 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.

Inclusion of Ladakh in Sixth Schedule

• In September 2019, the National Commission for Scheduled Tribes recommended the inclusion of Ladakh under the Sixth Schedule, noting that the new UT was predominantly tribal (more than 97%), people from other parts of the country had been restricted from purchasing or acquiring land there, and its distinct cultural heritage needed preservation.
• Notably, no region outside the Northeast has been included in the Sixth Schedule. In fact, even in Manipur, which has predominantly tribal populations in some places, the autonomous councils are not included in the Sixth Schedule. Nagaland and Arunachal Pradesh, which are totally tribal, are also not in the Sixth Schedule.
• “Ladakh’s inclusion in the Sixth Schedule would be difficult. The Constitution is very clear, Sixth Schedule is for the Northeast. For tribal areas in the rest of the country, there is the Fifth Schedule. However, it remains the prerogative of the government — it can, if it so decides, bring a Bill to amend the Constitution for this purpose.

Challenges with the Sixth schedule

A case of Meghalaya: The Sixth Schedule was incorporated to protect the rights of the minority tribals living within a larger state dominated by the majority. But in these largely tribal-dominated states, the indigenous enjoy overwhelming majority and a major political voice, with 90 per cent of the Assembly seats (55 out of 60 in Meghalaya) reserved for the tribal. Indeed, it is now the rights of minority non-tribals that need protection. The existence of the Sixth Schedule in a full-fledged state with all powers is thus not only unnecessary but also illogical.

Siphoning of Funds: Dima Hasao district is under the scrutiny of NIA and CBI f or the alleged misappropriation of over Rs 1,000 crore of government funds. The amount was reportedly siphoned off to the coffer of the Dima Halam Daogah’s Jewel Garlosa faction (DHD-J) for procurement of arms.

Dilution of District Council: The Sixth Schedule was amended with the addition of Article 12 (A). The insertion of Article 12 (A) has in a sense diluted the powers of the district councils as laws passed by Parliament or by the state legislature has supremacy over those passed by the district councils.

Lack of Decentralisation: These areas lack political mobilization i.e. Mainstream parties having regionalism, localism and communism as political ideology which has drag down the developmental work. People here have low political participation.

125^th Constitution amendment bill

• The Bill amends to provide for Village and Municipal Councils in addition to the District and Regional Councils. Village Councils will be established for villages or groups of villages in rural areas, and Municipal Councils will be established in urban areas of each district
• Further, the Bill states that the Governor may make rules for devolution of powers and responsibilities to the Village and Municipal Councils. Such rules may be framed in relation to: (i) preparation of plans for economic development, (ii) implementation of land reforms, (iii) urban and town planning, and (iv) regulation of land-use, among other functions.
• State Finance Commission:The Bill provides the appointment of a Finance Commission for these states, to review the financial position of District, Village, and Municipal Councils. The Commission will make recommendations regarding: (i) distribution of taxes between states and District Councils, (ii) grants-in-aid to District, Village, and Municipal Councils from the Consolidated Fund of the state, (iii) and measures to improve the financial position of District, Village, and Municipal Councils.
• Elections to councils:The Bill states that all elections to the District Councils, Regional Councils, Village Councils, and Municipal Councils will be conducted by the State Election Commission appointed by the Governor, for these four states.
• Disqualification of members of councils: The Sixth Schedule provides that the Governor may make rules for the constitution of District and Regional Councils, including qualifications for being elected as members of these councils. The Bill adds that the Governor may make rules for the disqualification of such members on the grounds of defection.