Understanding Discretionary Powers under the Fifth Schedule

The question asks about the authority given discretionary powers under the Fifth Schedule of the Constitution of India to establish a Tribes Advisory Council in a State that has Scheduled Tribes but lacks Scheduled Areas. This involves understanding the provisions related to the administration and control of Scheduled Areas and Scheduled Tribes as outlined in the Constitution.

What is the Fifth Schedule?

The Fifth Schedule of the Constitution of India deals with the administration and control of Scheduled Areas and Scheduled Tribes in states other than Assam, Meghalaya, Tripura, and Mizoram (which are covered under the Sixth Schedule).

Its main purpose is to provide a framework for the protection, welfare, and development of Scheduled Tribes residing in these areas or states, recognizing their unique social, economic, and cultural needs.

Role of the Tribes Advisory Council (TAC)

The Fifth Schedule mandates the establishment of a Tribes Advisory Council (TAC) in each state having Scheduled Areas. The TAC consists of up to twenty members, of whom, as nearly as may be, three-fourths are representatives of the Scheduled Tribes in the Legislative Assembly of the State.

The duty of the TAC is 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.

Discretionary Power for States without Scheduled Areas

The Fifth Schedule addresses the establishment of a Tribes Advisory Council in two main scenarios under Paragraph 4:

1. States with Scheduled Areas: In states with Scheduled Areas, the Governor is required to establish a Tribes Advisory Council. This is a mandatory provision for such states.
2. States with Scheduled Tribes but no Scheduled Areas: Paragraph 4(2) of the Fifth Schedule specifically provides for this scenario. It states:

   "The Governor may if he thinks fit, and shall if so required by the President, by public notification constitute for a State having Scheduled Tribes but not Scheduled Areas a Tribes Advisory Council constituted in the manner aforesaid 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."

   This paragraph clearly indicates that for a state with Scheduled Tribes but *not* Scheduled Areas, the Governor *may* constitute a TAC on their own initiative ("if he thinks fit"), but they *shall* constitute it "if so required by the President".

Therefore, the power to *require* the Governor to set up a Tribes Advisory Council in a state which has Scheduled Tribes but not Scheduled Areas is vested in the President of India. The President has the discretionary power to issue such a direction.

Analyzing the Options

• The Governor of the concerned State: The Governor has the power to constitute the TAC on their own initiative ("if he thinks fit") in such a state, but the power to *direct* or *require* the establishment is with the President. The question asks about the authority with the discretionary power to *set up* (which here implies the power to mandate or require setting up, as distinct from merely permitting).
• The President of India: As per Paragraph 4(2) of the Fifth Schedule, the President can *require* the Governor to set up the TAC in a state with Scheduled Tribes but no Scheduled Areas. This is the discretionary power to mandate the action.
• The Inter-State Council: The Inter-State Council is established under Article 263 to inquire into and advise upon disputes between states and investigate and discuss subjects in which some or all of the states, or the Union and one or more of the states, have a common interest. It is not directly involved in the establishment of Tribes Advisory Councils under the Fifth Schedule.
• The Parliament of India: Parliament has the power to make laws relating to Scheduled Areas and Scheduled Tribes, including amending the Fifth Schedule. However, the specific discretionary power to *direct* the setting up of a TAC in the specified scenario is given to the President, not Parliament directly exercising this executive function.

Based on the provisions of the Fifth Schedule, particularly Paragraph 4(2), the discretionary power to require the setting up of a Tribes Advisory Council in a state with Scheduled Tribes but no Scheduled Areas lies with the President of India.

Revision Table: Key Authorities and the Fifth Schedule

Additional Information on Fifth Schedule Administration

Beyond the Tribes Advisory Council, the Fifth Schedule contains other important provisions for the administration of Scheduled Areas:

• Governor's Report: The Governor of each state having Scheduled Areas is required to submit a report annually, or whenever so required by the President, regarding the administration of the Scheduled Areas in that state.
• Union Executive Power: The Union executive power extends to giving directions to the concerned states regarding the administration of the said areas.
• Applicability of Laws: The Governor can direct that any particular Act of Parliament or the State Legislature shall not apply to a Scheduled Area or shall apply with specified modifications and exceptions. The Governor can also make regulations for the peace and good government of any Scheduled Area, subject to assent by the President.

These provisions collectively aim to ensure that the administration in Scheduled Areas and for Scheduled Tribes is tailored to their specific needs and circumstances, with significant roles assigned to both the Governor and the President, and Parliament retaining the power to make laws and amend the Schedule.