The Fifth Schedule and the Scheduled Areas

Article 339 empowers the President to appoint a Commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes, and gives the Union executive power to give directions to a State as to the drawing up and execution of schemes for that welfare.

The statute that made it operational

The Panchayats (Extension to the Scheduled Areas) Act 1996. Part IX of the Constitution did not apply to Scheduled Areas, so the panchayat system did not reach them. Section 3 extended Part IX to the Scheduled Areas with the exceptions and modifications in section 4.

Section 4 contains the provisions that matter. State legislation on panchayats in a Scheduled Area must be in consonance with customary law, social and religious practices and traditional management practices of community resources; every village shall have a Gram Sabha competent to safeguard traditions and customs, community resources and the customary mode of dispute resolution; the Gram Sabha shall approve plans and programmes for social and economic development and identify beneficiaries; consultation with the Gram Sabha or the Panchayat is mandatory before acquiring land for development projects and before resettling or rehabilitating persons affected; and the Gram Sabha or Panchayat is to be consulted before granting a prospecting licence or mining lease for minor minerals.

The cases

Land in a Scheduled Area may not be transferred to a non-tribal, and that includes a government company. In Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191; AIR 1997 SC 3297. Facts. The State of Andhra Pradesh had granted mining leases in Scheduled Areas to private companies, and a regulation prohibited the transfer of land in such areas to a non-tribal. Held, by a majority. The word "person" in the regulation includes a natural person and a juristic person, so a transfer of land in a Scheduled Area to a non-tribal company is void; that government land, forest land and tribal land in a Scheduled Area cannot be leased to non-tribals or to private companies for mining; and that such leases may be granted to a State instrumentality or to a co-operative society of tribals, subject to conditions including that at least twenty per cent of the net profits be spent on local development. Why it matters here is that it turns the Schedule's land protection into an enforceable restriction on the State itself, and it is the leading case on the Fifth Schedule.

And the Gram Sabha decides on a religious claim to land. In Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476. Facts. The proposed bauxite mining in the Niyamgiri Hills, which the Dongria Kondh regarded as the abode of their deity, and the rejection of forest clearance by the Ministry. Held. The question whether the community's religious and cultural rights, and their rights under the Forest Rights Act 2006, would be affected was for the Gram Sabhas to decide, and directed that the Gram Sabhas of the concerned villages consider the claims and communicate their decision, on which the Ministry would then take a final decision. Why it matters here is that it makes the Gram Sabha created by the Act of 1996 a decision-maker rather than a consultee, on the question that mattered most.

A worked example

A State proposes to acquire two hundred hectares in a Scheduled Area for an industrial park and to grant a mining lease over part of it to a private company. What has to happen?

Consultation is mandatory before acquisition. Section 4(i) of the Act of 1996 requires the Gram Sabha or the Panchayats at the appropriate level to be consulted before acquiring land in a Scheduled Area for development projects and before resettling or rehabilitating persons affected.

The lease to a private company is the difficulty. On Samatha, government, forest and tribal land in a Scheduled Area cannot be leased to a non-tribal or to a private company for mining. A lease to a State instrumentality or to a co-operative of tribals is permissible on conditions.

And if the land is a place of worship or of religious significance, the Gram Sabha decides. On Orissa Mining Corporation, the question whether the community's religious and cultural rights would be affected is for the Gram Sabhas of the villages concerned.

The Governor's powers sit behind all of this. Under paragraph 5(1) the Governor may direct that a State Act, including one facilitating acquisition, shall not apply to the Scheduled Area or shall apply with modifications; and under paragraph 5(2) he may make a regulation prohibiting the transfer of land. Those powers are rarely used, and an answer that notices the gap between the power and its use is a better answer.

Distinctions

What it does NOT mean

It does not mean the State has no power in a Scheduled Area. Paragraph 2 provides that the executive power of the State extends to it, subject to the Schedule.

It does not mean the Governor's powers are regularly used. They are not, and the criticism of the Fifth Schedule is largely that its central safeguard is discretionary and dormant.

It does not mean no mining can occur. Samatha permits leases to State instrumentalities and to co-operatives of tribals on conditions.

And it does not mean the Tribes Advisory Council decides anything. It advises on matters the Governor refers to it, which is a much weaker thing than a District Council under the Sixth Schedule.

Quick revision

Article 244(1) and the Fifth Schedule: Scheduled Areas and Scheduled Tribes in States other than Assam, Meghalaya, Tripura and Mizoram. Paragraph 2: State executive power extends there, subject to the Schedule. Paragraph 3: the Governor's annual report to the President and Union directions. Paragraph 4: a Tribes Advisory Council of not more than twenty members, three quarters being Scheduled Tribe members of the Assembly, advising on referred matters. Paragraph 5(1): the Governor may direct that an Act of Parliament or of the State Legislature shall not apply to a Scheduled Area or shall apply with modifications. Paragraph 5(2): regulations for peace and good government, in particular prohibiting or restricting the transfer of land by or among Scheduled Tribes, regulating allotment and regulating money-lending; by 5(3) such regulations may repeal or amend an Act, and they need the President's assent. Paragraph 6: the President declares Scheduled Areas. Paragraph 7: Parliament may amend the Schedule by ordinary law, which is not an article 368 amendment. Article 275(1) proviso: grants. Article 339: a Commission and Union directions. The Act of 1996 extends Part IX with modifications, requiring consonance with customary law, a competent Gram Sabha, and mandatory consultation before acquisition and before a minor mineral concession. Samatha: land in a Scheduled Area cannot be leased to a non-tribal or a private company for mining. Orissa Mining Corporation: the Gram Sabhas decide on religious and cultural rights.

Test yourself

1. Which power in the Fifth Schedule has no counterpart elsewhere in the Constitution? Paragraph 5(1), by which the Governor may by public notification direct that a particular Act of Parliament or of the State Legislature shall not apply to a Scheduled Area, or shall apply subject to exceptions and modifications.

2. What is a Tribes Advisory Council, and what is its weakness? A body of not more than twenty members, three quarters of them Scheduled Tribe members of the Legislative Assembly, constituted under paragraph 4 to advise on matters pertaining to the welfare and advancement of the Scheduled Tribes referred to it by the Governor. Its weakness is that it advises only, and only on what is referred.

3. How may the Fifth Schedule be amended? By an ordinary law of Parliament under paragraph 7, which provides that no such law shall be deemed to be an amendment for the purposes of article 368.

4. What did Samatha decide? That the word "person" in a regulation prohibiting transfer of land in a Scheduled Area to a non-tribal includes a juristic person, so government, forest and tribal land there cannot be leased to non-tribals or to private companies for mining; leases to a State instrumentality or a tribal co-operative are permissible on conditions, including spending at least twenty per cent of net profits on local development.

5. What did the Act of 1996 add, and name three of its requirements. It extended Part IX to the Scheduled Areas with modifications. State legislation must be in consonance with customary law and traditional management of community resources; every village must have a competent Gram Sabha; and consultation with the Gram Sabha or Panchayat is mandatory before acquiring land for development projects and before granting a prospecting licence or mining lease for minor minerals.

6. Give two differences between the Fifth and Sixth Schedules. The Fifth creates an advisory council and leaves legislative power with the Governor by regulation; the Sixth creates elected District Councils with legislative, judicial and taxing power. And Part IX was extended to Fifth Schedule areas by the Act of 1996, whereas article 243M excludes the Sixth Schedule areas from it.