Context: Despite demands from many states, scheduled tribal populations of India have been left out of fifth schedule’s protection awaiting approval from the Indian government.
Under Fifth schedule the constitution of India provides that “in this Constitution, the expression “Scheduled Areas” means such areas as the President may by order declare to be Scheduled Areas.”
These areas are primarily inhabited by Scheduled Tribes in any State other than Assam, Meghalaya, Tripura, and Mizoram, which are indigenous or tribal communities. These areas are subject to special constitutional provisions and safeguards to promote the welfare and advancement of the Scheduled Tribes living in these regions.
Key features of Scheduled Areas Under Fifth Schedule
Tribal Advisory Council
- Each state with Scheduled Areas must establish a Tribes Advisory Council, consisting 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 of the State.
- This council advises the Governor on matters related to the welfare and development of Scheduled Tribes in the state.
- The Governor of the state has the authority to make regulations specific to Scheduled Areas.
- These regulations can include restrictions on land transfer, land allotment, and the regulation of money-lending practices, among other aspects, to protect the interests of Scheduled Tribes.
Laws and Their Application
- The Governor can issue notifications exempting or modifying the application of certain laws passed by Parliament or the State Legislature in Scheduled Areas.
- Additionally, the President has the authority to declare, modify, or rescind Scheduled Areas.
- The Fifth Schedule itself can be amended by the Indian Parliament, but such amendments do not require the special amending procedure outlined in Article 368 of the Indian Constitution.
Panchayats (Extension to Scheduled Areas) Act, 1996
- PESA empowered the gram sabhas to exercise substantial authority through direct democracy and stated that structures “at the higher level do not assume the powers and authority” of the gram sabha.
Criteria For Declaration of a Scheduled Area
Neither the Constitution nor any law provides any criteria to identify Scheduled Areas. The Supreme court in a judgement held that the identification of Scheduled Areas is an executive function, and it lacks the expertise to scrutinise the empirical basis of the same.
But based on the 1961 Dhebar Commission Report, the following are the guiding norms for their declaration:
- Preponderance of tribal population.
- Compactness and reasonable size of the area.
- A viable administrative entity such as a district, block or taluk.
- Economic backwardness of the area relative to neighbouring areas.
Declaration of a Schedule Area
The process of designating an area as a Scheduled Area in India involves a series of steps.
|Consultation with State Governments|
Before issuing the Presidential Order, the President usually consults with the concerned State Government. This consultation is aimed at considering the views and recommendations of the state government regarding the proposed designation of the area as a Scheduled Area.
The initiation of the process typically begins with a Presidential Order. The President of India can, by issuing an order, declare that a specific geographical area or region is to be designated as a Scheduled Area. This initial order specifies the boundaries and details of the Scheduled Area.
After the Presidential Order is issued, it needs to be approved by the Parliament of India. The order is typically laid before both houses of Parliament (Lok Sabha and Rajya Sabha) for discussion and approval. This step ensures that there is legislative scrutiny and debate regarding the designation.
If Parliament approves the Presidential Order, it becomes part of the Fifth Schedule of the Indian Constitution. Any changes to the Fifth Schedule, including the addition or alteration of Scheduled Areas, require a majority vote in Parliament but do not require the special amending procedure outlined in Article 368 of the Indian Constitution.
Once the area is designated as a Scheduled Area under the Fifth Schedule, the government issues a notification specifying the boundaries and details of the Scheduled Area. This notification is essential for the implementation of special provisions and regulations in that area.
After that the administration of the Scheduled Area is regulated as per the provisions of the Fifth Schedule. The Governor of the state in which the Scheduled Area is located plays a significant role in its governance, and a Tribes Advisory Council is often established to advise on matters related to the welfare and development of Scheduled Tribes in the area.
Facts about the Scheduled Areas
- India has 705 Scheduled Tribe (ST) communities, comprising 8.6% of the country’s population. They are spread across 26 states and six Union Territories.
- Scheduled Areas cover 11.3% of India’s land area and are notified in 10 states: Andhra Pradesh, Telangana, Odisha, Jharkhand, Chhattisgarh, Madhya Pradesh, Rajasthan, Gujarat, Maharashtra, and Himachal Pradesh. Kerala has proposed to notify more areas, pending approval.
Challenges Faced by Scheduled Areas
- Land Alienation: Land disputes, inadequate implementation of land reform policies, are persistent issues in scheduled areas. Due to lack of awareness about land rights communities often struggle to assert their land rights depriving them of their traditional means of livelihood.
- Inadequate Implementation of Laws: Due to bureaucratic hurdles, corruption, and lack of awareness there is an ineffective implementation of laws and provisions that protect the rights and interests of tribal communities.
- Lack of Political Representation: Despite reserved seats in legislative bodies, tribal communities often face challenges in electing representatives who genuinely advocate for their interests leading to lack of voice in decision making.
- Naxalism and Conflict: Some Scheduled Areas are affected by left-wing extremism or Naxalism, which disrupts governance, development, and security. These areas face a unique set of challenges related to insurgency and counterinsurgency operations.
Recommendation of Xaxa Committee on Schedule Areas
The Xaxa Committee, officially known as the “High-Level Committee on Socio-economic, Health, and Educational Status of Tribal Communities of India,” was constituted to examine the status of tribal communities in India, particularly in Scheduled Areas.
Land Rights and Livelihoods
- Ensure the effective implementation of the Forest Rights Act and Land Acquisition Act to protect tribal land rights.
- Recognize and protect the rights of tribal communities over minor forest produce and traditional occupations.
- Promote sustainable and community-based livelihood options such as agroforestry and non-timber forest produce collection.
Governance and Participation
- Strengthen the Panchayati Raj Institutions (PRIs) in Scheduled Areas and ensure that they have adequate resources and decision-making powers.
- Promote tribal participation in local governance and decision-making processes.
- Establish effective mechanisms for the implementation of tribal welfare schemes and monitor their progress.
Legal and Land Reforms
- Undertake land and tenancy reforms to protect tribal land rights and prevent land alienation.
- Review and repeal laws that are detrimental to tribal interests.
- Provide legal aid and support to tribal communities in land-related disputes.
- Promote the participation of tribal women in decision-making processes at all levels.
- Implement programs to address issues of gender-based violence and discrimination in tribal areas.