Fifth schedule of the constitution governs the supervision and administration of Schedule Areas. Article 244 (Administration of Scheduled and Tribal Areas) of Part X of the Constitution grants them overarching immunity to the extent of the substantial right to self-determination. Scheduled areas have the highest forest coverage and are rich in minerals. It has been seen that the business potential of scheduled areas leads the corporate sector to lobby intensively with the state government for decisions in its favour and high profits.

There have been questions on the topic of the Fifth Schedule in the UPSC exams earlier. This article explains the Fifth Schedule, Scheduled areas and Related issues are useful for Prelims 2023 preparation and UPSC Mains 2023 as well.

What is the Fifth Schedule?

• The Fifth Schedule of the Constitution deals with the administration and control of scheduled areas and scheduled tribes in any state except the four states of Assam, Meghalaya, Tripura and Mizoram
• The Constituent Assembly debated and approved the Fifth and Sixth Schedules during September, 1949.
• Fifth schedule applicable in all the other identified tribal regions, guarantees tribal autonomy and tribal rights over land through a Tribal advisory council in each State.
• The Sixth Schedule of the Constitution, on the other hand, deals with the administration of the tribal areas in the four northeastern states of Assam, Meghalaya, Tripura and Mizoram.

What are Scheduled Areas?

In the Constitution, the expression “Scheduled Areas” means such areas as the President may by order declare to be Scheduled Areas.

The President may at any time by order

• Directs that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area; increase the area of any Scheduled Area in a State after consultation with the Governor of that State;
• Alter, but only by way of rectification of boundaries, any Scheduled Area;
• On any alteration of the boundaries of a State or on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of, a Scheduled Area;
• Rescind, in relation to any State of States, any order or orders made under these provisions and in consultation with the Governor of the State concerned, make fresh orders redefining the areas which are to be Scheduled Areas.

Criteria for Scheduled Areas

• The presence of a large tribal population.
• The area's compactness and suitable size.
• A functional administrative unit, such as a district, block, or taluk.
• Economic backwardness of the area as compared to the neighbouring areas.

Fifth Schedule - Constitutional Provision

• Article 244(1) provides that the provisions of the fifth schedule shall apply to the administration and control of the scheduled areas and scheduled tribes in any state other than the states of Assam, Meghalaya, Tripura and Mizoram.
• The Union government has jurisdiction for the management of Scheduled Areas and the welfare of Scheduled Tribes, according to Article 339 of the Indian Constitution.

Fifth Schedule to the Constitution (Amendment) Act, 1976

• Empowered the President of India:
  • to increase the area of any Scheduled Area in a State after consultation with the Governor of that state;
  • to rescind any order made for the designation of an area in any state to be a Scheduled Area, or in consultation with the Governor of the State concerned, make a fresh order redefining the area which is to be a Scheduled Area.

Fifth Schedule Areas - Administration

• The scheduled areas are regarded differently from the rest of the country since they are home to 'aboriginals' who are socially and economically disadvantaged, and particular efforts must be made to ameliorate their situation.
• As a result, the whole administrative apparatus of a state is not extended to the scheduled territories, and the Central government has slightly higher responsibility for these areas.

The various provisions of administration of Scheduled Areas contained in the fifth Scheduled are:

• The executive power of the state extends to the scheduled areas therein. In the administration of Scheduled Areas, both the Centre and the States have duties to play. The Centre gives the state instructions on how to administer these areas.
• Report by Governor to the President: The Governor of each state having scheduled areas therein has to submit a report to the President annually or whenever so required by the President. The executive power of the Union extends to giving direction to the state regarding the administration of such areas.
• Law applicable to Scheduled Areas: Governor is empowered to direct that any particular act of parliament or state government does not apply to scheduled areas or if applied, then with specific modifications & exceptions.
• The Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area.

PESA act

• Part IX of the constitution's provisions pertaining to Panchayats do not apply to Fifth Schedule areas.
• However, the Parliament may extend these rules to such areas as it sees fit, subject to the exceptions and adjustments that it sees fit.
• The Parliament adopted the "Provisions of the Panchayats (Extension to Scheduled Areas) Act", 1996, under this clause, often known as the PESA Act or the Extension Act.
• Ten states currently have Fifth Schedule Areas (as of 2019). Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, and Rajasthan are the states involved.
• By revising their individual Panchayati Raj Acts, all 10 states have implemented the necessary compliance laws.

Tribal Advisory Council

• Tribal Advisory Council consists of not more than 20 members, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State.
• If the condition of seats are not fulfilled: If the number of representatives of the Scheduled Tribes in the Legislative Assembly of the State is less than the number of seats in the Tribes Advisory Council to be filled by such representatives, the remaining seats shall be filled by other members of those tribes.
• It should be established in each state having scheduled areas therein. They are constitutional bodies formed to deal with welfare and advancement of scheduled tribes in states.
• The Governor may make rules prescribing or regulating, as the case may be,
• the number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof;
• the conduct of its meetings and its procedure in general; and
• all other incidental matters.
• Duty of Tribal Advisory Council- To advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the State as may be referred to them by the Governor.

Appointment of Commission

• The Constitution provides for the appointment of a Commission to report on the administration of the scheduled areas and welfare of scheduled tribes in the states. He can appoint such a commission at any time but compulsorily after 10 years from the commencement of the Constitution [Article 339(1)].
  • The first commission to report on the administration and welfare of the Scheduled Areas was established in 1960 and was headed by UN Dhebar.
  • The second commission was appointed in 2002 under the chairmanship of Dilip Singh Bhuria.

Concerns Associated to Fifth Schedule Area

• The Fifth Schedule promotes Scheduled Tribes' welfare and advancement, as well as the administration of scheduled areas. It gives the governor of a state with scheduled areas extraordinary powers of governance. In practice, however, despite the recommendations of several groups, the extraordinary legislative and executive gubernatorial powers have been rarely used.
• Conflict of Interest: State cabinet (highest decision making body in the State) and the Tribal Advisory Council are headed by the same person, it would then be impossible for the Tribal Advisory Council to overturn a decision taken by the cabinet, even if it were not in the interest of tribal communities in scheduled areas.
• Environmental & Livelihood Concern: Loss of land remains the single biggest cause of deprivation of the livelihoods, lives and homelands of tribals across India. Scheduled areas have the highest forest coverage and are rich in minerals.
• It has been observed that the corporate sector uses scheduled regions' business potential to press the state government for favourable choices and big earnings. It has an impact on tribal populations' environment and livelihood. The tribal populations have been disproportionately targeted, displacing them from their lands and livelihoods.
• Issue related to PESA: Panchayats (Extension to Scheduled Areas) Act, 1996 was seen as the logical next step in ensuring tribal welfare and accountability in the Fifth Schedule areas. However, it has not been implemented properly. Tribal communities have been gradually denied self-government and rights to their communities' natural resources, which were supposed to be provided under the law.

Comparison between Fifth and Sixth Schedule

Conclusion

Although special constitutional protections for marginalised groups are necessary to ensure historical injustices against them. To deal with this sensitive subject, the government and other agencies must gain the trust of tribals and non-tribals in the region and instil a sense of security and belonging among them. The Fifth Schedule, it is believed, can be transformed into a useful tool for the uplift of STs with a few crucial adjustments.

FAQs

MCQs

1. What is the primary purpose of the Fifth Schedule of the Indian Constitution?

A) To protect tribal land rights
B) To establish a separate legal system for tribal communities
C) To provide economic benefits to the states
D) To integrate tribal areas into the mainstream economy

2. Under which constitutional provision can the Governor of a state in a Fifth Scheduled Area modify or annul laws?

A) Article 244(1)
B) Article 340
C) Article 244(2)
D) Article 123

3. Which of the following is not a Fifth Scheduled State?

A) Telangana
B) Jharkhand
C) Kerala
D) Madhya Pradesh

4. What is the role of the Tribal Advisory Council in the Fifth Scheduled Areas?

A) To govern tribal areas
B) To manage resources
C) To advise on tribal welfare policies
D) To conduct elections in Scheduled Areas

5. When was the PESA Act enacted to extend self-governance to the Scheduled Areas?

A) 1989
B) 1996
C) 2001
D) 2010

GS Mains Questions and Answers

Q1: Analyze the importance of the Fifth Schedule in protecting tribal autonomy in India.

Answer: The Fifth Schedule of the Indian Constitution plays a crucial role in safeguarding the rights and autonomy of tribal populations. By restricting land transfers and adapting laws to suit tribal customs, it ensures that indigenous communities retain control over their resources and culture. The Governor's ability to modify legislation and the role of Tribal Advisory Councils in policymaking further bolster this autonomy. However, challenges remain in the effective implementation of these provisions, especially concerning land alienation and resource exploitation.

Q2: Discuss the impact of the PESA Act on governance in Scheduled Areas.

Answer: The PESA Act of 1996 significantly impacted governance in Scheduled Areas by decentralizing power to local Gram Sabhas. This allowed for greater self-governance and the preservation of tribal customs. However, implementation has been uneven, with challenges in ensuring that local bodies have the resources and authority needed to function effectively. Despite these challenges, PESA remains a vital tool in empowering tribal communities.

Q3: Evaluate the role of the Governor in the administration of Fifth Scheduled Areas.

Answer: The Governor plays a pivotal role in the administration of Fifth Scheduled Areas, wielding the power to amend or nullify laws to suit the region's needs. This flexibility allows for the protection of tribal land and resources. However, the effectiveness of this role depends on the Governor's willingness to prioritize tribal welfare and engage with Tribal Advisory Councils. The lack of consistency in the application of these powers has been a point of criticism.

Previous Year Questions

1. UPSC CSE Prelims 2019:

Question: Under which schedule of the Constitution of India can the transfer of tribal land to private parties for mining be declared null and void?

A) Third Schedule
B) Fifth Schedule
C) Ninth Schedule
D) Twelfth Schedule

Answer: (B)

Explanation: Under the Fifth Schedule, tribal land cannot be transferred to private parties without significant legal scrutiny. This provision ensures that tribal resources are protected from exploitation.

2. UPSC CSE Mains 2020 (GS Paper 2):

Question: Discuss the significance of the Governor's powers in managing Fifth Scheduled Areas. How has this impacted tribal welfare?

Answer: The Governor's powers in Fifth Scheduled Areas are vital for the protection of tribal rights, particularly in the regulation of land and resources. These powers enable the adaptation of laws to protect the interests of indigenous populations. However, inconsistent use of these powers and external pressures from mining and industrial interests have at times undermined tribal welfare, leading to social unrest.