Article 244 of the Constitution deals with the administration of Scheduled Areas and Tribal Areas through two Schedules. Provisions of the Fifth Schedule apply to the administration and control of the Scheduled Areas and Scheduled Tribes in states other Assam, Meghalaya, Tripura and Mizoram, while provisions of the Sixth Schedule apply to the Tribal Areas of these four states. These two schedules have a history dating back to the colonial days of the 19th century, when the empire gradually expanded into areas inhabited mostly by the scheduled tribes, who resented such encroachments.
The Forest Acts of 1878 and 1927 effectively dispossessed tribals of their traditional rights over forest land. Their anger led to numerous rebellions against the British by the tribals of Bastar, Kukis, Nagas, Santhals and many others. The colonial administration subsequently enacted various laws to protect tribal land and not to interfere too much in their traditional autonomy and self-governance traditions.
A large number of areas predominantly inhabited by tribals were brought under the purview of the Scheduled Districts Act of 1874; under the Government of India Act 1935 and the Government of India (Excluded and Partially Excluded Areas) Order 1936, these areas were designated as Partially Excluded/ Excluded Areas for the purpose of general administration. Following Independence, these areas were brought under the Fifth and Sixth Schedules respectively and referred to as Scheduled Areas for the purpose of preserving the autonomy, culture and for ensuring economic empowerment of the tribes. Though no criteria were specified in the Constitution to bring any area under these schedules, a specific set of criteria has evolved over a period of time which includes the preponderance of tribal population, the under-developed nature of the area and low economic standard of their tribal inhabitants, who are collectively identified as Scheduled Tribes (ST) under Article 342 of the Constitution.
Scheduled Areas have been notified in ten states ~ Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana. However, not all tribal areas in the country are covered by these schedules ~ tribal habitats in Kerala, Tamil Nadu, Karnataka, West Bengal, Uttar Pradesh and Jammu & Kashmir are not covered either by the Fifth or the Sixth Schedule. The Sixth Schedule had its origin in the Cabinet Mission of 1946 that had suggested constitution of an ‘Advisory Committee on the Rights of Citizens, Minorities, Tribals and Excluded Areas’, which was formed by the Constituent Assembly, and which appointed a Sub-Committee under the chairmanship of Gopinath Bordoloi. It had made wide-ranging recommendations including the constitution of Regional Councils and Autonomous District Councils (ADCs) with specific powers to administer these areas, allocation of certain taxes and financial powers to these councils and only tribal representation from these areas to the state legislature. These generated angry debates in the Constituent Assembly, with members from Assam warning that such an arrangement was “the surest method of inviting chaos, anarchy and disorder throughout the length and breadth of this country”; some even going a step ahead and pointing to the seeds of separatism inherent in this scheme. But buoyed by the staunch support of Dr. Ambedkar, who compared the situation of the tribals of Assam to those of the Red Indians in USA whose habits and manners of life were so distinct that it would be dangerous to bring them at one shot within the ambit of the laws enacted for the majority, the Bordoloi Committee recommendations were adopted by the Constituent Assembly and became the Sixth Schedule to the Constitution. There are currently 10 ADCs in the northeast as envisaged in the Sixth Schedule ~ three each in Assam, Meghalaya and Mizoram and one in Tripura. The ADCs and the Regional Councils are empowered to make laws in respect of areas under their jurisdiction, which cover allotment, occupation and use of land for agricultural and nonagricultural purposes, management of forest, control of jhuming or other forms of shifting cultivation, establishment of town councils or village councils, inheritance of property, preservation of social customs, etc.
The ADCs are like miniature states having specific powers and responsibilities in respect of all the three arms of government: legislature, executive and judiciary. They have the powers to collect land revenues and certain other taxes within their districts like taxes on professions, trade and calling, etc., and to control money lending as well as trading by the non-tribals. The Sixth Schedule does infringe the rights of non-tribals and discriminates against them in various ways, violating many of the fundamental rights granted to citizens under the Constitution, like the right to equality before law (Article 14), right against discrimination on the grounds of caste, race, sex, place of birth or religion (Article 15), right to equality of opportunity in public appointment (Article 16), right to settle anywhere in India (Article 19), etc.
However, social and economic marginalisation of tribal communities over long periods in history and considerations of distributive justice and equality made the framing fathers of our Constitution take a nuanced view of equality and rights in respect of disadvantaged people in general and STs in particular, placing the constitutional provisions the Fifth and Sixth Schedules within a broader legal perspective. Special constitutional protections are indeed required for SCs/ STs or OBCs to ensure that the historical wrongs done to them are not repeated and are reversed. Under Article 13(2) of the Constitution, the State cannot make any law that violates any fundamental right. Right to settle anywhere is a fundamental right, but as many as 26 states have enacted some form of land transfer regulations prohibiting transfer of tribal land to non-tribals either in the scheduled areas or in tribal blocks. Only two states ~ Nagaland and Meghalaya ~ have covered their entire territories under such regulation, preventing transfer of any land to non-tribals; in Meghalaya, only a tiny area of two out of total 23 sq. km of the capital Shillong known as the European Ward allows such transfer, and that too when there is no tribal buyer.
In general, the prohibition of such transfers has been reinforced by Supreme Court judgments ~ as in the Samatha case of Andhra Pradesh (1997) or Niyamgiri case of Odisha (2016), both of which relate to mining rights of other over tribal land. However, the context varies from state to state which opens up other issues that not only violate the fundamental rights of others, but sometimes do gross injustice to them. Society being a dynamic entity, social laws are never cast in stone, a fact corroborated by over 103 amendments to our Constitution over the last 73 years. Even rights have acquired different meanings; the right to property, once a fundamental right under Article 19(1)(f ), has ceased to be so under the 44th Amendment, and the right to the protection life and personal liberty under Article 21 now includes the right to education.
Various Supreme Court judgments have expanded the scope of Article 21 further to include the right to information and internet access, the right to a life of dignity which includes therefore a host of other rights necessary to make life holistic and complete, like the rights to livelihood, shelter, clean environment, water, and many other socio-economic rights which were earlier included under the non-enforceable Directive Principles of State Policy under Part IV of the Constitution. Indeed, the Preamble to the Constitution upholds a commitment to ‘Justice – social, economic, and political’, and all these rights follow from that commitment.
But excessive emphasis on tribal exclusivity may also mar their assimilation into the mainstream without which they tend to remain isolated and hence disadvantaged, defeating the very purpose of such asymmetric laws as the Fifth and Sixth schedules which were meant primarily to prevent their displacement from land and erosion of livelihoods. Substantial asymmetrical autonomy to a particular group in a federation is not uncommon, but a fine balance needs to be struck between the need for such autonomy and economic development, not forgetting the crosscultural understanding necessary for mainstreaming of such groups. Without such mainstreaming which essentially involves integration and economic empowerment, the danger of social unrest and separatist tendencies dragging the federation down a slippery slope always remains potent, as the history of insurgency in the north-east amply attests.
Identity is always a doubleedged sword, with the danger of alienation of tribal communities on one side, and globalization, homogenisation and economic empowerment on the other. The argument that the modern idea of development based on consumerism militates against tribal values of communitarianism based on an intimate connection between the individual and the community is now passé ~ the new generation of tribals and non-tribals alike shows distinct preference for globalisation over an identity-based political and economic structure of society, as evidenced by the increasing proclivity of tribal youth from the north-east to relocate themselves outside the region, and not always for economic reasons.
(To be Concluded)
The writer is a commentator and an author