Tribal India: The Fifth and Sixth Schedules
Chapter Sixty-One
Syllabus topic 4.13, "Community and the law". MU sets "tribal rights" and expects the constitutional design to be named.
Pages 272 to 277 of 768
In one line
For the Scheduled Castes the Constitution promised entry into a society that excluded them; for the Scheduled Tribes it promised protection from a society that was taking their land.
In the wording a student can write in an exam: the constitutional scheme for the Scheduled Tribes is not the scheme used for the Scheduled Castes. Under article 244(1) the Fifth Schedule applies to the administration of the Scheduled Areas and the Scheduled Tribes in every State except Assam, Meghalaya, Tripura and Mizoram, and under article 244(2) the Sixth Schedule applies to the tribal areas in those four States. The Fifth Schedule is a scheme of executive protection: the Governor may make regulations prohibiting the transfer of land to non-tribals, may direct that an Act of Parliament or of the State Legislature shall not apply to a Scheduled Area, and must consult a Tribes Advisory Council. The Sixth Schedule goes further and creates autonomous district and regional councils with power to make LAWS on land, forest, shifting cultivation, inheritance, marriage and social custom, and to constitute village courts.
Around the two Schedules sit the supporting articles. Article 275's first proviso funds both, article 339 gives the Union control over the administration of the Scheduled Areas, article 338A creates the National Commission for Scheduled Tribes, and articles 342 and 342A supply the lists.
Why the design is different
Because the injury was different. The Scheduled Castes were inside Hindu society and excluded within it; the Scheduled Tribes were outside it and were being absorbed into it on terms they did not set.
So the remedy is different. For caste the Constitution abolishes the disability and opens the institution: article 17, article 15(2), article 25(2)(b), article 29(2). For the tribes it draws a line around the territory and puts the Governor and, in the North East, the community itself inside it.
Nehru's five principles, the Panchsheel of tribal policy, put the same thought in policy language: that tribal people should develop along the lines of their own genius; that their rights in land and forest should be respected; that a team of their own people should be trained to do the work of administration; that administration should not be over-administered or overwhelmed with schemes; and that results should be judged by the quality of human character built up and not by statistics or the amount of money spent.
And the Court said the same thing. In Kailas v. State of Maharashtra the Supreme Court set out the historical account at length, and the answer to "why a separate design" is in it.
Kailas: the historical account
Facts. Kailas v. State of Maharashtra, (2011) 1 SCC 793, decided 5 January 2011 by Katju and Gyan Sudha Misra JJ. A woman of the Bhil tribe, a Scheduled Tribe, was beaten, stripped and paraded naked in a Maharashtra village by persons of a dominant community, after which her family left the village. The trial court convicted under section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and under the Penal Code; the High Court set aside the Atrocities Act conviction and reduced the sentence; the accused appealed further.
Tribal India: The Fifth and Sixth Schedules
Held. The appeal was dismissed. The Court called the conduct shameful, shocking and outrageous, and deserving of harsh punishment.
And what the judgment is cited for. The passages on the position of the tribes: that they are probably the descendants of the original inhabitants of India; that the injustice done to them is a shameful chapter in the country's history; that they were slaughtered, degraded, deprived of their lands and pushed into the forests and hills; that they are today the most marginalised of all the disadvantaged groups, with high rates of illiteracy, disease and early mortality; that articles 15(4), 16(4), 16(4A) and 46 exist for their upliftment; and that the mentality of the country towards them must change. The Court expressly adopted the account of their plight given in Samatha v. State of Andhra Pradesh.
Use it carefully. The historical and anthropological passages are obiter and parts of them rest on sources the Court itself described loosely. Cite the judgment for the Court's characterisation of the injustice and of the constitutional duty, which is what it decides to say, and not as an authority on prehistory.
The Fifth Schedule
Where it applies. Article 244(1): to the administration and control of the Scheduled Areas and the Scheduled Tribes in any State other than Assam, Meghalaya, Tripura and Mizoram. In practice that is ten States, among them Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan.
Who declares an area Scheduled. Paragraph 6: the President, by order. The President may also increase a Scheduled Area after consulting the Governor, may direct that any part shall cease to be one, and may rescind and make a fresh order.
The Governor's report, paragraph 3. The Governor of each State having Scheduled Areas shall report annually, or whenever required, to the President on their administration, and the executive power of the Union extends to giving directions to the State on that administration.
The Tribes Advisory Council, paragraph 4. Every State with Scheduled Areas shall have one, of not more than twenty members, of whom as nearly as may be three fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly. Its duty is to ADVISE on such matters relating to the welfare and advancement of the Scheduled Tribes as the Governor refers to it.
Tribal India: The Fifth and Sixth Schedules
The Governor's two great powers, paragraph 5.
First, disapplication. The Governor may by public notification direct that any particular Act of Parliament or of the State Legislature shall not apply to a Scheduled Area, or shall apply subject to exceptions and modifications, and may give the direction retrospective effect.
Second, regulation. The Governor may make regulations for the peace and good government of a Scheduled Area, and in particular may prohibit or restrict the transfer of land by or among members of the Scheduled Tribes, regulate the allotment of land to them, and regulate money lending to them. In making such a regulation the Governor may repeal or amend an Act of Parliament or of the State Legislature.
Its two conditions. A regulation has no effect until assented to by the President, and it may not be made without consulting the Tribes Advisory Council where one exists.
The weakness of the scheme, stated plainly. Everything in Part B of the Fifth Schedule is a power of the GOVERNOR. The Council advises and does not decide; the tribes are consulted and do not govern; and a Governor who does not act leaves the Schedule inert. The Land Transfer Regulations that Samatha enforced are the exercise of paragraph 5(2)(a) by the Governor of Andhra Pradesh.
The Sixth Schedule
Where it applies. Article 244(2): to the tribal areas in Assam, Meghalaya, Tripura and Mizoram, listed in the table appended to paragraph 20.
What it creates, paragraphs 1 and 2. Each listed tribal area is an autonomous district; the Governor may divide a district inhabited by different Scheduled Tribes into autonomous regions. There is a District Council for each autonomous district of not more than thirty members, of whom not more than four are nominated by the Governor and the rest elected on adult suffrage, and a Regional Council for each autonomous region. Each is a body corporate.
What the Councils may LEGISLATE about, paragraph 3. The allotment, occupation, use or setting apart of land other than reserved forest; the management of any forest that is not a reserved forest; the use of a canal or watercourse for agriculture; the regulation of jhum or other shifting cultivation; the establishment of village or town committees and their powers; village or town administration including village police, public health and sanitation; the appointment or succession of Chiefs or Headmen; inheritance of property; marriage and divorce; and social customs. Such laws are submitted to the Governor and have no effect until assented to.
What they may ADJUDICATE, paragraph 4. A Council may constitute village councils or courts to try suits and cases between parties all of whom belong to Scheduled Tribes within the area, to the exclusion of any court in the State, and shall exercise appellate powers over them, no court other than the High Court and the Supreme Court having jurisdiction.
Tribal India: The Fifth and Sixth Schedules
What they may administer. Primary schools, dispensaries, markets, ferries, fisheries, roads and waterways under paragraph 6; land revenue and specified taxes under paragraph 8; licences for the extraction of minerals with a share of the royalty under paragraph 9; money lending and trading by non-tribals under paragraph 10.
And disapplication again, paragraphs 12, 12A, 12AA and 12B. Acts of Parliament and of the State Legislature apply to the autonomous districts only as those paragraphs provide, with the Governor and in some cases the District Council able to except or modify. Paragraph 12A also settles repugnancy in Meghalaya in favour of the State law.
The Sixth Schedule in one sentence. It is self-government; the Fifth Schedule is protection administered by somebody else.
The rest of the constitutional scheme
Article 275, first proviso. Grants-in-aid charged on the Consolidated Fund of India to meet the cost of schemes of development undertaken by a State with the approval of the Government of India for promoting the welfare of the Scheduled Tribes, or for raising the level of administration of the Scheduled Areas to that of the rest of the State. The second proviso funds the Sixth Schedule areas of Assam.
Article 244A. Parliament may by law form an autonomous State within Assam comprising the tribal areas, with a Legislature or a Council of Ministers or both. It has never been used.
Article 339. A Commission on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes, which the President may appoint at any time and shall appoint at the expiration of ten years; and the power of the Union to direct a State as to the drawing up and execution of schemes essential for the welfare of the Scheduled Tribes.
Article 338A. The National Commission for Scheduled Tribes, inserted in 2003, with the duties, the civil-court powers and the consultation requirement described in [The Safeguards: Seats, Services and Commissions].
Articles 342 and 342A. The Presidential list of Scheduled Tribes, and, since 2018, of socially and educationally backward classes, variable only by Parliament.
And article 46. The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes and the Scheduled Tribes.
A worked example
A State Government proposes to lease land in a Scheduled Area to a company for a cement plant. The land is government land. The gram sabha objects.
Tribal India: The Fifth and Sixth Schedules
Is the transfer permissible? The Governor's Land Transfer Regulation under paragraph 5(2)(a) prohibits transfer to a non-tribal, and after Samatha the word "person" in such a Regulation includes the Government, so the lease is void in a State with a Regulation in those terms.
Does the Fifth Schedule itself forbid it? No. The Schedule EMPOWERS the Governor to prohibit; the prohibition is in the Regulation. Where no such Regulation exists the answer is different, and that is the practical weakness of the design.
What if the same land were in Meghalaya? Then the Sixth Schedule applies, the allotment and use of land other than reserved forest is a subject on which the District Council makes law under paragraph 3(1)(a), and the question is decided by the Council rather than for it.
And what does the gram sabha's objection add? Under section 4(i) of PESA the gram sabha must be consulted before acquisition of land in a Scheduled Area, and under the Forest Rights Act the gram sabha is the authority to determine forest rights. That is the next chapter.
What this does NOT mean
It does not mean the Fifth Schedule areas are outside the Constitution. Fundamental rights apply in full; so do Parliament's laws, unless the Governor has disapplied them; and the High Courts and the Supreme Court have their ordinary jurisdiction.
It does not mean the Sixth Schedule Councils are sovereign. Their laws require the Governor's assent, their subjects are enumerated, and Parliament's power over them survives in the terms paragraph 12 allows.
It does not mean tribes are excluded from reservation. Articles 15(4), 16(4), 330 and 332 apply to the Scheduled Tribes exactly as they apply to the Scheduled Castes; the Schedules are additional, not alternative.
And it does not mean the two Schedules are alternatives for the same area. Article 244 divides the country between them, and no area is under both.
Quick revision
Article 244(1) and the Fifth Schedule: Scheduled Areas in ten States. Governor's annual report to the President, paragraph 3; Tribes Advisory Council of not more than twenty, three fourths Scheduled Tribe legislators, ADVISORY, paragraph 4; Governor may disapply an Act of Parliament or of the State Legislature, and may make regulations prohibiting transfer of land to non-tribals, regulating allotment and regulating money lending, with the President's assent and after consulting the Council, paragraph 5; President declares Scheduled Areas, paragraph 6. Article 244(2) and the Sixth Schedule: Assam, Meghalaya, Tripura and Mizoram. Autonomous district and regional councils, up to thirty members, four nominated, paragraphs 1 and 2; power to make LAWS on land, non-reserved forest, jhum, village administration, Chiefs and Headmen, inheritance, marriage and divorce and social custom, subject to the Governor's assent, paragraph 3; village courts and appellate powers, paragraph 4; schools, markets, ferries and fisheries, paragraph 6; land revenue and taxes, paragraph 8; mineral licences and royalty share, paragraph 9; money lending and trading by non-tribals, paragraph 10.
Tribal India: The Fifth and Sixth Schedules
The supporting articles: 244A, an autonomous State in Assam, unused; 275 first proviso, grants for tribal welfare and for raising the level of administration in Scheduled Areas; 339, Union directions and a Commission; 338A, the National Commission; 342 and 342A, the lists. Kailas 2011 for the historical injustice and the constitutional duty.
Test yourself
1. Which Schedule applies where, and under what article? The Fifth Schedule under article 244(1) to the Scheduled Areas and Scheduled Tribes of every State except Assam, Meghalaya, Tripura and Mizoram; the Sixth Schedule under article 244(2) to the tribal areas of those four States.
2. State the Governor's two principal powers under Part B of the Fifth Schedule and the conditions on them. Under paragraph 5(1) the Governor may direct by public notification that an Act of Parliament or of the State Legislature shall not apply to a Scheduled Area or shall apply with exceptions and modifications, with retrospective effect if desired. Under paragraph 5(2) the Governor may make regulations for the peace and good government of the area, in particular prohibiting or restricting transfer of land by or among Scheduled Tribes, regulating allotment of land to them and regulating money lending, and may in doing so repeal or amend an Act. A regulation has no effect until assented to by the President and may not be made without consulting the Tribes Advisory Council where one exists.
3. Name six subjects on which a Sixth Schedule District Council may make law. Any six of: allotment, occupation or use of land other than reserved forest; management of a forest that is not a reserved forest; use of canals or watercourses for agriculture; regulation of jhum or shifting cultivation; village or town committees and their powers; village or town administration including village police and public health; appointment or succession of Chiefs or Headmen; inheritance of property; marriage and divorce; and social customs.
4. What is the central structural difference between the two Schedules? The Fifth Schedule vests protective powers in the Governor and gives the tribes an advisory body; the Sixth Schedule vests legislative, judicial, executive and financial powers in elected Councils of the tribal areas themselves. Protection administered by another, against self-government.
5. What is Kailas v. State of Maharashtra cited for in this chapter? For the Supreme Court's account of the historical injustice to the tribal people, of their present marginalisation, and of the constitutional duty under articles 15(4), 16(4), 16(4A) and 46; and, adopting Samatha, for the description of their plight. It is authority for the Court's characterisation, not for prehistory.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.