Governance

Very little is understood about Fifth and Sixth schedules of Indian constitution

On the 69th anniversary of passage of Fifth and Sixth Schedules, DTE brings first ever tabular comparison of these provisions

 
By B K Manish
Last Updated: Thursday 07 September 2017 | 09:25:50 AM
These two schedules provide for alternate or special governance mechanisms for certain scheduled areas in mainland and tribal areas. Credit: Agnimirh Basu / CSE
These two schedules provide for alternate or special governance mechanisms for certain scheduled areas in mainland and tribal areas. Credit: Agnimirh Basu / CSE These two schedules provide for alternate or special governance mechanisms for certain scheduled areas in mainland and tribal areas. Credit: Agnimirh Basu / CSE

Fifth and Sixth Schedules were discussed and passed by Constituent Assembly between September 5-7, 1949. These days are remembered by tribal rights activists every year. The two schedules remain probably, the most enigmatic segments of the Constitution of India. Constitutional authorities, judiciary, bureaucrats, journalists and academia alike are ignorant about factual realities on these two schedules, as evident from passionate yet factually incorrect writings that keep appearing in dailies, magazines and journals.

These two schedules provide for alternate or special governance mechanisms for certain 'scheduled areas' in mainland and certain 'tribal areas' in northeastern India. Normative legislative-executive and judicial authority for States and Union Territories in India are provided for in Parts 11-12 and Chapter 5 of Part 6 respectively.

Somewhat different mechanisms were provided for tribal zones in the Constitution due to their political significance, and these have changed a great deal over time. Ironically, when a deeper understanding (and empirical analysis) of these provisions is called for in view of existential crisis of tribes and ecological crisis for India, very little is understood or attempted to understand.

Down To Earth is aware of this knowledge-gap, especially when there are deep linkages between ecological justice and tribal rights. So, on the is 69th anniversary of passage of Fifth and Sixth Schedules, DTE brings first ever tabular comparison of these provisions, organised by the leading subject matter expert, B K Manish.

Comparison of alternate/special governance mechanisms for tribal zones in the Constitution of India (as of Aug 15, 2017)

 

PP(ESA)A

Schedule.V

Schedule.VI

Assam

Tripura

Mizoram

Meghalaya

Area Covered

(Scheduled Area)
Notified districts or
parts thereof in 10 States:
Himachal Pradesh, Rajasthan, Gujarat, Maharashtra, Andhra Pradesh, Telangana, Odisha, Jharkhand, Chhattisgarh and Madhya Pradesh

(Tribal Area)
North Cachar Hills District & Karbi Anglong District

(Tribal Area)
Bodoland Territorial Areas District

(Tribal Area)
Tripura State, except Shillong Municipal and Cantonment Area

(Tribal Area)
Chakma District,
Mara District &
Lai District

(Tribal Area)
Khasi Hills District,
Jaintia Hills District &
Garo Hills District

Irregular functions of President/Governor

N.A.

Similar to Art.339, but scope is wider than mere planning-execution of Schemes and covers “Administration of Scheduled Areas.”
Laws and Executive Action may be adapted for special needs of Scd. Areas through Notification and Regulation (no mention of discretion).

Governor’s power of determining any dispute over sharing of royalty or fees pertaining to mining between District Council and the State is discretionary. All other powers of Governor are discretionary, after he has consulted Council of Ministers and District Council.

Governor’s power of determining any dispute over sharing of royalty or fees pertaining to mining between District Council and the State is discretionary.

Governor’s power of determining any dispute over sharing of royalty or fees pertaining to mining between District Council and the State is discretionary. All other powers of Governor are discretionary, after he has consulted Council of Ministers and District or Regional Council.

Governor’s power of determining any dispute over sharing of royalty or fees pertaining to mining between District Council and the State is discretionary.

Type of
Special Body

Gram Sabha

(State) Tribes Advisory Council

(Autonomous) District Council & (Autonomous) Regional Council

Bodoland Territorial Council

(Autonomous) District Council &
(Autonomous) Regional Council

Domain of Legislative Power of
Special Body

Power of subordinate legislation with respect to consumption of intoxicants, minor forest produce, land-alienation, village markets, money-lending, control over institutions and functionaries in social sector, control over local plan and resources for them, if and when endowed by State Legislature.

N.A.
(may advise on Regulations to be made at initiative of and by Governor)

On subjects as enumerated in clauses (a) to (j) of Para 3
and (a) to (o) of para 3A

On subjects as enumerated in clauses (a) to (j) of Para 3
and (i) to (xl) of para 3B  

On subjects as enumerated in clauses (a) to (j) of Para 3

Administration of Justice by Special Body

Only to the extent that State Legislature is prohibited from making laws inconsistent with customary laws and practices, including customary mode of dispute resolution.
But Union legislations like CrPC and CPC would prevail over customary methods.

N.A.

Primary trial of civil suits and other cases by Village Council/Courts, appeal shall lie wherefrom to the Special Body.
Role of High Court to be limited to what Governor may specify.

N.A.

Primary trial of civil suits and other cases by Village Council/Courts, appeal shall lie wherefrom to the Special Body.
Role of High Court to be limited to what Governor may specify.

General Administration
(Executive Functions)
by Special Body

Its approval is mandatory for implementation of local plans, its recommendation is mandatory with respect to minor minerals, and consultation with it is mandatory for land-acquisition and rehabilitation associated with development projects.

N.A.

(In Assam, with respect to subjects as enumerated in clauses (a) to (o) of Para 3A
and (i) to (xl) of para 3B, by respective District Council.)
With respect to subjects enumerated in clauses (a) to (j) in para 3, by respective Council.
On subjects like primary healthcare/ education, cattle-fish and transport, with previous approval of Governor to District Council.
Other functions of Community Development and State’s executive power, upon assignment to District Council, with mutual consent.
Regulation of Money-Lending and Trading by respective District Council, though making of law and its enforcement.

Taxing Power and  Finances
of Special Body

 N.A.
Although it would issue utilization certificate to Panchayat for projects and plans of economic development and social justice.

N.A.

Assessment and collection of land revenue, levy of taxes on land-buildings and tolls on persons resident therein, by respective Council.
District Council to levy and collect taxes on Professions, modes of transport, entry of goods in market for sale and for maintenance of public utilities.
Establishment of Fund for respective Council, operational rules of it to be made by Governor, and its audit report to be prepared by CAG and laid before Council by the Governor.

Extension of
Legislative Acts
Of State and Union

All State and Union Acts (including CPC, CrPC, IPC etc.) extend automatically to Scheduled Areas, but Governor may prohibit their application or adapt these laws, after commencement (It is disputed as to who is to initiate and affirm such adaptation).
Panchayati Raj and Municipalities Act not to extend automatically.

No Legislative Act of Legislative Assembly of State, relating to subjects as enumerated in clauses (a) to (j) of para 3 [and in clauses (a) to (o) of Para 3A and clauses (i) to (xl) of para 3B, in State of Assam] and relating to consumption of non-distilled alcoholic liquor, shall extend automatically to an autonomous district/region unless notified by its respective Council.

Laws made by Legislature of Meghalaya shall prevail over laws made by respective Council under para 3, 8 or 10.

Governor may notify that any law of Parliament (except laws referred to, above) shall not apply at all to an autonomous district/region, or shall apply with specified adaptation.

Governor may notify that any law of State Legislature (except in Meghalaya or laws referred to, above) shall not apply at all to an autonomous district/region, or shall apply with specified adaptation.
President may notify that any law of Parliament shall not apply at all to an autonomous district/region, or shall apply with specified adaptation.

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  • It is wrong to say Fifth Schedule or Sixth Schedule provisions are not well understood. Tribal rights activists are well aware. Several Development Management/ Rural Management courses teach these as well as part of Constitution. I too regularly do.

    Take for instance Fifth schedule. Actions that could lend strength to fifth schedule provisions have not been taken. Powers have not been transferred as required in fifth schedule areas. Panchayat Extension to Scheduled Area Act slips out of discourse (for example when certain political ideology holders can persuade the government of the day to ban certain diet across all areas or ban trade or change land transfer rules etc). Till today an urban PESA for the municipal area remains to see the light of day.

    The problem is the governments of the day and the official dom now and in the past routinely chooses to ignore these. There is a world of difference between not understood and deliberately ignoring.

    Perhaps greater need is for Justices/lawyers/ journalists to be oriented on this - so that it is not easy to ignore.

    Posted by: SwayamShaswat | 12 months ago | Reply