5th AND 6th SCHEDULE OF THE CONSTITUTION

  • The basic thrust of the Fifth and Sixth Schedule of the constitution is the protection of cultural distinctiveness of Tribal.
  • Both provides protection to the tribals on account of their economic disadvantages so that they could maintain their tribal identity without any coercion or exploitation.

THE INTERESTS OF SCHEDULE TRIBES OUTSIDE THE NORTH EAST IS PROTECTED BY FIFTH SCHEDULE.

  • THE FIFTH SCHEDULE designates Schedule areas in large parts of India in which the interests of the Scheduled Tribes are to be protected. The Scheduled area has more than 50 percent tribal population.
  • THE SIXTH SCHEDULE IS RELATED TO THE ADMINISTRATION OF NORTH EASTERN STATES i.e. the states of Assam, Meghalaya, Tripura and Mizoram in the North-east. It has provisions for the formation of autonomous districts and autonomous regions within the districts as there are different schedule tribes within the district.

THE FIFTH SCHEDULE (ARTICLE 244(1))

  • The Fifth Schedule being a very important provision of the constitution deals with the control and administration of the Schedule Areas. Some of the important features of the Schedule are:
  • It deals with provision for the constitution of a Tribes Advisory Council
  • The Governor has the power to adapt laws passed by Parliament and State legislature in such a way that it suits these areas.
  • It provides Governor with the power to make regulation for good governance and peace for the area.
  • The Fifth Schedule also deals with the extension of direction by the Union to a State for the administration of the Schedule Areas.
  • Under Fifth Schedule, the most important institution is the Tribes Advisory Council.
  • In the Tribes Advisory Council, Scheduled Tribe MLA’s in the state consists of its three-fourth membership.
  • Since Tribes Advisory Council is formed by the provisions of the Fifth Schedule it has the status of a constitutional body. The Schedule is aimed towards making the State responsible towards the promotion of educational and economic interests of Tribal.
  • It also aims to provide social justice to the tribals and prevent them from exploitation of any kind.
  • The Central Government also provides special financial assistance to the states under Article 275 for the implementation of schemes that would lead to the development of Schedule Tribes. (Upendra Bakshi 2009, 338-340)

POWERS OF GOVERNOR UNDER FIFTH SCHEDULE

  • The Powers of Governor are important in the application of the provision of Fifth Schedule.
  • He enjoys the power to modify, annul or limit the application of any law made by Parliament or State legislature in the areas designated as Schedule Areas.
  • For good governance of the area he has the power to make regulations. He regulates land allotments to members of Schedule Tribes.
  • He is also authorized to regulate business like money lending in the Fifth Schedule area.

TRIBES ADVISORY COUNCIL | 5th AND 6th SCHEDULE OF THE CONSTITUTION

  • The Fifth Schedule provides the provision of a Tribes Advisory Council. It deals with the provision of establishment of Tribes Advisory Council consisting of not more than twenty members.
  • Three-fourth of its representatives would consist of Schedule tribes members of the State Assembly.
  • In case the number of such representatives are less than the number of seats which are to be filled than the remaining seats shall be filled by other members of the tribe.
  • The Fifth Schedule also provides the establishment of Tribes Advisory Council in states which have Schedule Tribes population but do not have Schedule Areas if the President so directs for the formation of Tribes Advisory Council in those areas.
  • Tribes Advisory Council advise on matters related to the welfare and advancement of the Scheduled Tribes in the state which are referred to the council by the Governor.
  • The Governor has the power to make rules prescribing or regulating, the number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council etc.

LAWS APPLICABLE TO THE SCHEDULE AREAS | 5th AND 6th SCHEDULE OF THE CONSTITUTION

  • The Governor has the power to direct about non-application of any act which has been passed by Parliament or Legislature of the State to a Scheduled Area or any part thereof in the state or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect.
  • The Governor has the power to make regulation for peace and good governance of any area in a state which is a Scheduled Area.
  • Those regulations include prohibiting or restricting the transfer of land by or within members of the Scheduled Tribes in Scheduled areas; regulating the allotment of land to members of the Scheduled Tribes in those areas; regulating the money lending business by those who lend money to people of the Scheduled Tribes in such area. In the process of making such regulation discussed above, the Governer may repeal or amend any Union or State law.
  • The Governor can make such regulation only after consultation with the Tribes Advisory Council of the state.
  • It is to be understood that all such regulation will have effect only after being submitted to and accepted by the President of India.

PRESIDENT AND THE SCHEDULE AREAS | 5th AND 6th SCHEDULE OF THE CONSTITUTION

  • Schedule Areas are those areas which the President may direct to be Scheduled Areas with respect to the Fifth Schedule of our Constitution.
  • The President has the power to direct that the whole or any part of a Scheduled area has ceased to be a Scheduled area. He can after consultation with the governor of that state increase the area of any Scheduled Area. In this way he possesses the power to alter the boundaries of any Schedule area.
  • The regulations made by the Governor come into effect only when they are accepted by the President. Governor is required to submit annually the reports regarding administration of the Scheduled areas to the President.

AMENDMENT OF THE SCHEDULE

  • Parliament through a law can amend any of the provisions of this Schedule by way of addition, variation or repeal. Any such law is not deemed to be an amendment under Article 368 of the Constitution.

PROVISIONS OF SIXTH SCHEDULE OF THE CONSTITUTION (ARTICLE 244(2) AND 275(1))

  • The Sixth Schedule is different from the Fifth Schedule as it deals with the details of the mechanism and institutions essential for governance of the autonomous districts in Assam, Meghalaya, Tripura and Mizoram. These autonomous districts are directly administered by the Governor. The Sixth Schedule deals with the constitution, powers and functions of District Councils and Regional Councils in these autonomous districts.
  • These Councils enjoy legislative powers on specific subjects and are also allotted certain sources of taxation. These councils also have the powers powers to set up and administer their system of justice and maintain administrative and welfare services in respect of land, revenue, forests, education, public health etc..
  • These Autonomous District Councils are in existence in the states of Assam, Mizoram, Tripura, and Meghalaya. The Indian Constitution provides funds under Article 275(1) to both Schedule Fifth and Schedule Sixth areas for the purpose of promoting the welfare of Scheduled tribes or raising the level of administration of the Schedule Areas.
  • The Autonomous districts are the mechanism to safeguard the traditional heritage of the Tribals, their customary practices and usages and also maintaining economic security. This is achieved by conferring on them Executive, Legislative and judicial powers along with development and financial powers and functions.
  • Sixth Schedule envisages the powers of the Autonomous District Councils within the autonomous areas, to make laws of the land, management of forests (except reserved forests), regulation on trade by persons not being local schedule tribes, appointment of traditional chiefs and headmen, inheritance of property, marriage, divorce, social customs, establishment and maintenance of primary schools, markets, taxation, issue of lease for extraction of minerals etc..

ROLE OF GOVERNOR

  • The Governor under the provision of the Sixth Schedule of the Constitution is empowered to determine areas under the administration of the council.
  • He has the authority to form new autonomous districts. He can increase or reduce the area of any autonomous districts or Districts Councils.
  • He is also empowered to unite two or more districts or its parts to carve out one autonomous district from it.
  • The Governor can also define the boundaries or alter the name of any autonomous district.
  • But it should be noted that such changes can only be brought in the composition of the territory of Autonomous District Councils by the Governor after the submission of report of the appointed commission for that purpose. Eg: If the Governor of Manipur has to issue such order than he has to take the consultation of the Hill Area Committee.
  • There has been some differences observed in designation of the Administrative areas of the District Councils from one place to another. Eg: In some states like Assam and Meghalaya the District Council has been constituted at the District level. But in Mizoram it exists both at the district and sub-divisional level.