Determining Scheduled Areas under the Constitution: a flawed approach A constitutional guarantee has been unfortunately left to administrative and political interpretations, reducing this task to a much overdue and unfinished agenda
09, Jun 2023 | CR Bijoy
Abstract
Determining Scheduled Areas under the Fifth Schedule of Article 244 of the Constitution has been left largely to administrative and political interpretations. Mired in ambiguities, most often adverse, this resulted in the denial of what this constitutional provision potentially could offer the Scheduled Tribes. About sixty percent of the Scheduled Tribes are unjustly denied and kept out of the purview of this constitutional provision. Judicial pronouncements and laws such as the Provisions of the Panchayats (Extension to Scheduled Areas) Act 1996 and the Forest Rights Act 2006 clarify many of the ambiguities. These and more are attempted to be linked up here as an update to set clear well-defined tasks to address this long-standing unfinished agenda.
Among its four pillars of action, the land and livelihood rights of Adivasis and traditional forest dwellers, is one. CJP, with its expertise in navigating cases of human rights violations in the courts and beyond has been active on the issue; partnering with the All India Union of Forest Working Peoples (AIUFWP) since 2017 to battle any setback to these rights in the courts. This includes legally fighting back against malicious prosecution of leaders of the community and defending the Forest Rights Act, 2006 in the Supreme Court. We stand with the millions of Forest Dwellers and Adivasis whose lives and livelihoods are threatened. Please support our efforts by donating here.
Introduction
Scheduled Tribe (ST) communities constitute 8.6% of the total population. STs constitute a majority in 110 districts out of 640 districts in the country, 20 to 50 % in 87 districts and 10 to 20 % in another 74 districts. Of the 5,97,483 villages, STs are a majority in 1,10,118 villages, 20 to 50 % in 45,902 villages and 10 to 20 % in another 29,800 villages (MoTA 2013).
Scheduled Areas have been notified vide Para 6 (1) of the Fifth Schedule to the Constitution in 10 States viz. Andhra Pradesh, Telangana, Odisha, Jharkhand, Chhattisgarh, Madhya Pradesh, Rajasthan, Gujarat, Maharashtra and Himachal Pradesh. They cover some 11.3 % of the total land area of the country (Wahi 2018:28). Of the 640 administrative districts, 104 districts have Scheduled Areas; 45 districts are fully notified and 63 are partially notified. They cover 77,564 villages of 22,040 panchayats in 664 blocks (MoPR 2023). These Scheduled Areas have 5.7 % of the country’s total population and 35.2 % of ST population. About 53 % of the total population in the Scheduled Areas are STs (Wahi 2018).
There are numerous ST habitations across the country that are not notified as Scheduled Areas. These STs are denied the constitutional rights and empowerment under Article 244 and the provisions in various laws as are applicable to the Scheduled Area such as the Provisions of the Panchayats (Extension to Scheduled Area) Act 1996 (PESA), 1 Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 20132, and where ‘local bodies’ are empowered as the Biological Diversity Act, 20023 and the related court orders.
There have been several sustained demands and campaigns from Adivasi (tribal) organisations to the concerned State governments for inclusion of the villages left out in the 10 States that have Scheduled Areas, and from other States that have ST populations, both large and small, but no Scheduled Area. The Bhuria Committee which was constituted to recommend provisions for the extension of panchayat raj to the Scheduled Areas had recommended to this effect. There have been a few positive initiatives from the State governments and fewer still have fructified. These tardy responses have often been explained away primarily with the argument that the demands and proposals do not consist of viable ST majority administrative units that may be considered eligible for notifying as Scheduled Areas. Parallel to this are the demands, both surreptitious and open, to denotify existing areas within Scheduled Areas. These demands have been made using the very same argument that several administrative units in existing Scheduled Areas no longer hold Scheduled Tribe majorities.
The legal basis for notifying Scheduled Area as to who can decide and what constitutes a Scheduled Area is examined here in order to determine whether the demands for inclusion of more areas as Scheduled Area and its reorganisiation, and exclusion of certain areas from Scheduled Areas are compatible with the law.
Who decides the area to be notified as Scheduled Area?
Article 244 (1) of the Constitution of India provides for the administration of the Scheduled Areas and Scheduled Tribes in States (other than Assam, Meghalaya and Tripura) in accordance with the provisions of the Fifth Schedule. ‘Scheduled Areas’ in Para 6 (1) of the Fifth Schedule to the Constitution means such areas as the President may by order declare to be Scheduled Areas. The Constitution does not provide any norm defining the administrative unit that ought to be the basis for declaration of Scheduled Area. The minimum percentage of ST population that must be contained in such area and a cut-off date for this are also not prescribed under Article 244, or in any law.
Further, Para 6 (2) of the Fifth Schedule confers powers exclusively on the President to declare any area as Scheduled Area. The Andhra High Court concluded that ‘neither the Executive Government nor the State Legislature, much less this Court, can declare an area to be a Scheduled Area’. Para 6 does not impose any limitation or restriction on the power of the President as to which areas are to be included or excluded in the Scheduled Area. This power is absolute and left to the discretion of the President. Therefore, the decision regarding the areas which are to form Scheduled Areas is not open to question or judicial scrutiny.
The Fifth Schedule unambiguously states that: ‘The President may at any time by order —
(a) direct 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;
(aa) increase the area of any Scheduled Area in a State after consultation with the Governor of that State;
(b) alter, but only by way of rectification of boundaries, any Scheduled Area;
(c) 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;
(d) rescind, in relation to any State or States, any order or orders made under this paragraph, and in consultation with the Governor of the State concerned, make fresh orders redefining the areas which are to be Scheduled Areas’.
The Supreme Court has held that ‘the identification of Scheduled Areas is an executive function and we do not possess the expertise needed to scrutinize the empirical basis of the same,’ that ‘there has been a considerable influx of non-tribal population in some of the Scheduled Areas’ and ‘that persons belonging to the Scheduled Tribes should occupy at least half of the seats in Panchayats located in Scheduled Areas, irrespective of whether the ST population was in a relative minority in the concerned area’.
A Public Interest Litigation challenging the 2007 notification declaring the Scheduled Area in Jharkhand on the ground that the percentage of ST population is less than 50 % in some blocks was dismissed by the Jharkhand High Court observing that the declaration of Scheduled Area ‘being within the exclusive discretion of the President neither violates any constitutional provisions, nor is the exercise of power has been done on extraneous considerations so as to be amenable to judicial scrutiny’.
The criteria for determining Scheduled Areas
The 1961 Dhebar Commission Report (GoI 1961) suggested four criteria for declaring new areas as Scheduled Area. They are:
(a) the preponderance of tribal population,
(b) compactness and reasonable size of the area,
(c) under-developed nature of the area and
(d) marked disparity in the economic standard of the tribals living in the areas.
The Ministry of Tribal Affairs largely agreed to the above recommendations9 which have generally been used for declaring Scheduled Area resulting in the Constitutional Orders since 1950 till 2007. All that the above recommendations mean is that the
- STs are to be greater in number, preponderant, not a majority, as compared to other social categories of peoples as the Other Backward Classes (OBC), Scheduled Castes (SC) and the residual ‘Other’ category. and
- that the area proposed should be a viable administrative entity. Therefore, the administrative entity or unit to be considered for scheduling is left to political and administrative decision grounded in social reality.
The Scheduled Areas and Scheduled Tribes Commission 2002 constituted under the Article 339 (1) of the Constitution had recommended that ‘All revenue villages with 40 % and more tribal population according to 1951 census may be considered as Scheduled Area on merit’ (GoI 2004). The Tribal Affairs Ministry communicated this recommendation in 2018 for consideration by the States for declaration of Scheduled Areas.10
The Bhuria Committee in 1995 (MoRD 1995) recognised the face-to-face community in the tribal areas managing its affairs to be the basic unit of the system of self-governance in tribal areas. A hamlet, or a group of hamlets or a village, as the case may be, is the natural unit of the community; this is distinctly different from the administrative units as the revenue village, the Panchayat, Taluk or the District. The Committee observed that the present administrative boundaries were drawn during the British period keeping their administrative convenience in mind. It took no note of the tribal situation in the country. Most of the country’s tribal population is located on the margins of different administrative units.
Moreover, the recommendations of various Government-appointed Committees were to include the remaining Tribal Sub-Plan (TSP) applicable in 21 States and 2 Union Territories with 193 Integrated Tribal Development Projects/ Integrated Tribal Development Agencies, Modified Area Development Approach (MADA) areas numbering 259, as well as similar pockets of 82 clusters, under the Scheduled Areas notification. Most states have ignored this till date.
The ambiguity in deciding on what should be the basic unit for consideration for notifying as Scheduled Area was finally settled when the fundamental administrative unit was defined under the PESA 1996. PESA defined ‘village’ as: ‘a village shall ordinarily consist of a habitation or a group of habitations, or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs’. Following this, the ‘Gram Sabha’ got defined as ‘consisting of persons whose names are included in the electoral rolls’ of the village thus defined. This radically departs from the definition of the village which is generally the revenue village with a number of habitations, and the Gram Sabha which is at the Gram Panchayat level with a number of revenue villages and numerous habitations, resulting in a totally unwieldly area and population that intrinsically makes such Gram Sabhas non-functional, at best nominal.
The definition of ‘village’ under PESA, 1996 was adopted in the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) applicable across the country making their Gram Sabha as the statutory administrative entity with reference to forest. Further FRA requires all ‘forest villages’, whether notified as a village or not, to be treated as ‘village’ in FRA and converted to revenue village. The definition of the village as the habitation or group of habitations as defined in PESA has now expanded its application beyond the Scheduled Area to the forest fringe areas and forest villages inside the forest.
Geographical jurisdiction and compactness of area
The territorial jurisdiction or the geographical limit of the ‘village’ has expanded under FRA to include the ‘Community Forest Resource’ (CFR). CFR is defined as the ‘customary common forest land within the traditional or customary boundaries of the village or seasonal use of landscape in the case of pastoral communities, including reserved forests, protected forests and protected areas such as Sanctuaries and National Parks to which the community had traditional access’ where FRA is applicable. The collective control of the Gram Sabhas and command over the CFR and its resources has now become lawful, although limited to forest land. The traditional or customary boundaries on revenue lands remain to be determined and demarcated by the Gram Sabhas.
Having identified the villages where STs are the major social group, the notion of compactness of the area is generally equated to whether the villages constitute a contiguous area, or are contiguous to existing Scheduled Area, if any. The Constitution does not prescribe that the area that is being scheduled has to be compact and contiguous. Contiguity is not a mandatory criterion adopted for demarcating administrative units. Rather, it is flexible though desirous, contingent on the ground reality. For instance, the Union Territory of Dadra and Nagar Haveli, and Daman and Diu are not contiguous. The Union Territory of Puducherry consists of four small geographically unconnected districts, namely Puducherry and Karaikal (enclaves of Tamilnadu), Mahé (an enclave of Kerala) and Yanam excluding Chandranagar (an enclave of Andhra Pradesh). There are enclaves of non-Autonomous District Council areas within the Tripura Tribal Areas Autonomous District Council Area.
Moreover, by policy recommendations, the Scheduled Area is to be coterminous with Tribal Sub-Plan and MADA areas. Many of these are not contiguous with each other, and to the existing Scheduled Areas in the States that have Scheduled Areas. In effect, contiguity is not a required criterion for notification of Scheduled Area. The Government of Kerala proposed the notification of Scheduled Area in 2015 comprising of 2,133 habitations, also called colonies or oorus, 5 Gram Panchayats and 2 wards which are enclaves in 5 different districts. This proposal is awaiting Union Government approval and Presidential notification. These are not contiguous areas.
Conclusion
The basic building unit of Scheduled Areas that is now well established in law applicable to Scheduled Areas is the ‘village’. A ‘village’ is defined as ‘a habitation or a group of habitations, or a hamlet or a group of hamlets’. All such villages outside of the existing notified Scheduled Areas in any State and UTs, where STs are greater in number as compared to other social categories of peoples as the OBC, SC and the residual ‘Other’, are to be notified as Scheduled Area. This step has to be initiated post-haste as the majority of STs continue to be denied the constitutional rights and empowerment under the Fifth Schedule provisions regarding the administration and control of Scheduled Areas and STs under Article 244 (1) despite the Constitution coming into force in 1950, and the passage of PESA a quarter century ago.
The geographical limit of these villages extend to the Community Forest Resource area in Scheduled Area and outside it as well on forest land under FRA where applicable. Therefore, the Gram Sabhas of the villages in Scheduled Areas should be empowered in law through suitable amendments to the relevant State/Union Territory laws, rules, regulations and manuals to determine and demarcate the geographical limit on revenue lands based on their customary and traditional boundaries. This has to be followed up by redrawing the geographical limits at the Gram Panchayat, Sub-Divisional and District level whether contiguous or not in the Scheduled Area.
The completion of the unfinished task of identifying villages and the area to be covered under the Fifth Schedule by the State and Union governments is a constitutional requirement that ought not to be delayed any further.
Image Courtesy: empowerias.com
(The author examines natural resource conflicts and governance issues)
1 See https://tribal.nic.in/actRules/PESA.pdf
2 See https://www.indiacode.nic.in/handle/123456789/2121?sam_handle=123456789/1362
3 See https://www.indiacode.nic.in/bitstream/123456789/2046/1/200318.pdf
4 Andhra High Court, WP Nos. 15688 OF 2011, Mandava Rama Krishna & Seven Ors vs State Of Andhra Pradesh & Eight Ors on 17 April, 2014, https://indiankanoon.org/doc/127746566/
5 Patna High Court, Amarendra Nath Dutta And Ors. vs State Of Bihar And Ors. on 23 December, 1982, AIR 1983 Pat 151, 1983 (31) BLJR 609, https://indiankanoon.org/doc/201364/
6 See https://www.mea.gov.in/Images/pdf1/S5.pdf
7 Supreme Court of India. Union Of India vs Rakesh Kumar & Ors on 12 January, 2010, Civil Appeal Nos. 484-491 of 2006, https://indiankanoon.org/doc/1356187/
8 Jharkhand High Court. Md.Ashique Ahamed vs Union Of India & Ors. on 10 February, 2016, W.P. (PIL) No. 689 of 2010, 2016https://indiankanoon.org/doc/1356187/
9 Ministry of Tribal Affairs, Government of India. Criteria for declaring Scheduled Areas, Declaration of Scheduled Areas, https://tribal.nic.in/Clm.aspx
10 Ministry of Tribal Affairs, Letter No. 18016/04/2017-C&LM dated 1 January 2018 on redefining criteria for declaration of Scheduled Areas under Fifth Schedule of the Constitution.
11 See https://tribal.nic.in/downloads/FRA/FRAActnRulesBook.pdf
12 Principal Secretary, SC/ST Development Department, Government of Kerala. Declaration of Scheduled Area, Letter to Ministry of Tribal Affairs, Government of India No. 3432/D1/15/SCSTDD dated 07-04-2015.
13 Land and land revenue are subjects of State list (List II), listed at Sl. No.18 & 45.
References
- Government of India (GoI) (1961): “Report of the Scheduled Areas and Scheduled Tribes Commission”, Vol. 1, 1960- 61, p.63, https://indianculture.gov.in/flipbook/1761
- GoI (2004): “Report of the Scheduled Areas and Scheduled Tribes Commission”, Vol. 1, 2002-2004, p.76, https://ncst.gov.in/sites/default/files/2021/Report/Report.pdf
- Ministry of Panchayati Raj, Government of India (MoPR) (2023): “Annual Report 2022-23”, p.120, https://panchayatgyan.gov.in/documents/448457/0/Annual+Report+2022-2023+%28English%29.pdf/4b1a9e49-0832-8138-7ab7-f5c8165b1e4b?t=1677130886320
- MoPR (2023): “State-wise details of notified Fifth Schedule Areas”, https://cdnbbsr.s3waas.gov.in/s316026d60ff9b54410b3435b403afd226/uploads/2023/03/2023032444.pdf
- Ministry of Rural Development, Government of India (MoRD) (1995): “Report of the Committee of Members of Parliament and Experts Constituted to make Recommendations on Law Concerning Extension of Provisions of the Constitution (Seventy-Third Amendment) Act, 1992 to Scheduled Areas”, https://ncst.nic.in/sites/default/files/2021/Report/Report_1.PDF
- Ministry of Tribal Affairs, Government of India (MoTA) (2013): “Statistical Profile of Scheduled Tribes in India”, p.8, https://tribal.nic.in/downloads/statistics/StatisticalProfileofSTs2013.pdf
Wahi, Namita and Ankit Bhatia (2018): “The Legal Regime and Political Economy of Land Rights of Scheduled Tribes in The Scheduled Areas of India”, Centre for Policy Research, p.28-9, https://cprindia.org/wp-content/uploads/2021/12/The-legal-regime-and-political-economy-full-200418.pdf
