Protected Territories and Tribal Self-Governance: The Fifth and Sixth Schedules Explained

Scheduled and Tribal Areas

Article 244 in Part X of the Constitution lays down a distinct governance framework for two categories of specially administered regions: Scheduled Areas and Tribal Areas. These are not ordinary administrative units — they carry constitutional protection rooted in the social and economic vulnerabilities of their tribal inhabitants.

• Fifth Schedule: Governs scheduled areas and scheduled tribes in all states except Assam, Meghalaya, Tripura, and Mizoram.
• Sixth Schedule: Governs tribal areas specifically in the four northeastern states of Assam, Meghalaya, Tripura, and Mizoram.

This bifurcation exists because the tribal communities in the northeastern states have maintained far deeper cultural distinctiveness and have resisted assimilation, warranting a more autonomous governance structure.

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Rationale

Scheduled areas are inhabited by aboriginal communities who remain socially and economically marginalised. The normal state administrative machinery is not considered sufficient or appropriate for these regions. The Central government, therefore, carries an elevated degree of responsibility for their governance.

Currently (as of 2016), ten states have scheduled areas: Andhra Pradesh, Telangana, Jharkhand, Chhattisgarh, Gujarat, Himachal Pradesh, Madhya Pradesh, Maharashtra, Odisha, and Rajasthan.

Key Features of the Fifth Schedule

1. Declaration of Scheduled Areas

• The President has the power to declare any area as a scheduled area.
• He can also expand, reduce, alter boundaries, or rescind such a declaration.
• All such actions are taken in consultation with the Governor of the concerned state.

2. Distribution of Executive Powers

• The executive authority of the state government extends to scheduled areas within it.
• However, the Governor bears a special responsibility: he must submit a report to the President — annually or as directed — on the administration of these areas.
• The Central government can issue directions to states on how scheduled areas should be administered.

3. Tribes Advisory Council (TAC)

• Every state with scheduled areas must establish a Tribes Advisory Council.
• Composition: 20 members, of whom three-fourths must be representatives of scheduled tribes in the state legislature.
• Purpose: To advise the state government on matters relating to the welfare and advancement of scheduled tribes.
• A state with scheduled tribes but no scheduled areas may also set up a TAC if the President so directs.

4. Legislative and Regulatory Powers of the Governor

• The Governor may direct that any central or state law does not apply to a scheduled area, or applies with modifications and exceptions.
• The Governor can frame regulations for the peace and good governance of scheduled areas after consulting the TAC. These regulations may:
  • Prohibit or restrict transfer of land by or among scheduled tribe members.
  • Regulate land allotment to scheduled tribe members.
  • Control moneylending activities involving scheduled tribes.
• Regulations can even repeal or amend applicable acts of Parliament or state legislatures.
• However, all such regulations require the assent of the President before coming into force.

Commission on Scheduled Areas

The Constitution mandates the President to appoint a commission to review administration of scheduled areas and welfare of scheduled tribes. This commission must be appointed at least once after every ten years from the Constitution's commencement.

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Rationale for Special Treatment

Unlike tribes elsewhere in India who have broadly assimilated into mainstream cultural life, the tribes in Assam, Meghalaya, Tripura, and Mizoram have preserved their distinct customs, social structures, and civilisational identity. The Constitution acknowledges this by granting them a substantial degree of autonomy for self-governance — going well beyond what the Fifth Schedule provides.

Key Features of the Sixth Schedule

1. Autonomous Districts

• Tribal areas in these four states have been constituted as autonomous districts.
• They remain within the executive jurisdiction of the state — they are not outside state authority.

2. Governor's Powers over Autonomous Districts

• The Governor can reorganise autonomous districts: expand or shrink areas, rename them, or redefine boundaries.
• If an autonomous district has more than one tribe, the Governor may divide it into separate autonomous regions.

3. District and Regional Councils

• Each autonomous district has a District Council with 30 members:
  • 26 elected on the basis of adult franchise (five-year term, unless dissolved earlier).
  • 4 nominated by the Governor (serve at Governor's pleasure).
• Each autonomous region has a Regional Council.

4. Legislative Powers of Councils

• District and Regional Councils can legislate on specified subjects including:
  • Land and forests
  • Canal water
  • Shifting cultivation
  • Village administration
  • Inheritance of property
  • Marriage and divorce
  • Social customs
• All such laws require the assent of the Governor.

5. Judicial Powers

• Councils can constitute village courts to try suits and cases between tribes.
• Appeals lie before the district/regional councils.
• The jurisdiction of the High Court over such matters is determined by the Governor.

6. Administrative Powers

• The district council can establish and manage primary schools, dispensaries, markets, ferries, fisheries, and roads.
• Councils can regulate moneylending and trading by non-tribals within their jurisdiction (subject to Governor's assent).

7. Fiscal Powers

• Councils can assess and collect land revenue and levy specified taxes.

8. Applicability of Central and State Laws

• Acts of Parliament or state legislatures do not apply automatically to autonomous districts and regions — or apply with modifications.
• The authority to direct this varies:
  • In Assam: Governor controls applicability of both central and state laws.
  • In Meghalaya, Tripura, and Mizoram: President controls applicability of central laws; Governor controls state laws.

9. Commission and Dissolution

• The Governor may appoint a commission to examine administrative matters in autonomous districts or regions.
• On the recommendation of such a commission, the Governor can dissolve a district or regional council.

Tribal Areas at a Glance (2016)

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• The Fifth Schedule covers tribal protection through the Governor's special responsibility and the Tribes Advisory Council — but governance power stays with the state.
• The Sixth Schedule goes much further — autonomous councils exercise quasi-legislative, quasi-judicial, and fiscal powers.
• Remember: Presidential assent is needed for Fifth Schedule regulations; Governor's assent is needed for Sixth Schedule council laws.
• The 10-year mandatory commission under Fifth Schedule is a frequently tested provision.
• Know that 10 states currently have scheduled areas, and 10 tribal areas exist under the Sixth Schedule.
• Article 244A (autonomous state formation within Assam) is a trap — it is separate from the main Article 244 framework.
• The distinction in who controls law applicability under Sixth Schedule (Governor in Assam vs. President for central laws in other three states) is an important nuance.