Tribes in India: Legal and Administrative Framework

In the Roman context, the term ‘tribe’ was used to refer to a state of barbarism, but also to indicate a tributary relationship between a group and the imperial State, with whom gifts and tributes were exchanged. Tribe, therefore, referred to a particular relationship between centre and periphery, which was equally applicable to the tribal relationship with the Mughal Empire in India.

Since colonial administration definition of Tribe is embedded with different terms like Primitiveness,autochthonous,homogenous unit having specific land, dialect,unifying social organisation, shyness,cultural homogeneity,cultural and linguistic distinctiveness,lower levels of technology, unliterate, uncivilised, rural, non-industrial and so on…

Each definition of tribes stresses on a particular aspect of tribal life – their relationship with the state, civilization and processes of development as well as specific features of their culture, livelihood, and economy. However, the dominant conception of tribe that developed during this period revolved around notions of ‘backwardness’, indigeneity, and separation from the larger Hindu civilization. Tribes were identified largely in terms of what they were not: they did not practice Vedic Hinduism, they were not Muslim, their societies were marked by the relative absence of economic and ritual stratification, and they were not integrated into the “modern” economy or civilization.

In India, the local equivalent of the term ‘tribe’ is often assumed to be ‘jana’ or ‘communities of people’ based on the usage of the term in ancient Buddhist and puranic texts. In this conception, the term jana was used in opposition to the term jati to indicate that these communities were outside the jati or hierarchical caste system of

social organisation. This view, however, was not universally accepted, since other scholars point out that the categories of jana and jati do not neatly overlap with that of tribe and caste respectively in the present context.

The Census of India has also played a critical role in shaping the modern understanding of tribe through its efforts at enumeration and classification In the 1881 census, the term used was ‘forest tribes’, a sub-category within the broader group of ‘agricultural and pastoral castes’. In the 1901 census, tribes were identified as those who ‘practiced animism’ thus placing religious practices at the centre. Therefore, those practising Hinduism were viewed as castes, while those practising animism were labelled tribes(this is not present day criteria).

In later censuses, additional references to territory were included, producing the label of ‘hill and forest tribes’ in 1921 and ‘primitive tribes’ a decade later. The new descriptions laid emphasis on the isolation of tribes within hill and forest areas as well as their ‘primitive’ way of life. One of the earliest attempts to create a list of tribes in the sub-continent was during the 1931 census which identified ‘primitive tribes’. This was followed by a list of “backward

tribes” for the provinces made under the Government of India Act, 1935.

The 1950 Constitutional Amendment order with the full list of Scheduled Tribes recognised at the time was largely based on the list of “backward tribes” prepared by the colonial administration in 1936. At the time of the first census of independent India in 1951, there were 212 recognised Scheduled Tribes in the country. The term Scheduled Tribe itself is a politico-administrative category that does not capture the enormous social complexity of the various tribes encompassed within its fold. 

The Constitution of India categorised certain sections of the population as Scheduled Tribes to make available special welfare provisions to them – even though this category was never properly defined. In a circular fashion, tribes are defined as those groups enumerated as tribes under the Indian Constitution. 

Thus, Article 366(25) of the Constitution defines Scheduled Tribes as follows: “Scheduled Tribes means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution.”

tribes are scheduled primarily for implementation of the welfare activities and for their protection. The currently followed criteria for identification are: primitive traits, distinctive culture, geographical isolation, shyness of contact with the community at large, and general backwardness. As can be seen from several of these identifying features, the idea of the tribe as the ‘primitive’ has clearly continued into the post-colonial period. 

The first Backward Classes Commission (Kaka Kalelkar Commission) appointed by the President of India under Article 340 argued that the tribes: 

“lead a separate exclusive existence and are not fully assimilated in the main body of the people. Scheduled Tribes may belong to any religion. They are listed as Scheduled Tribes, because of the kind of life led by them.”

In 1959, the Government of India appointed a Commission headed by Shri. U.N. Dhebar to look into the welfare of the Scheduled Tribes and even this commission failed to arrive at a satisfactory definition.

The granting of ST status to certain social groups was an on-going process, indicating that there are groups which might identify themselves as tribes but which remain outside of the official ST category.

As the issue of anomalies within the ST list constantly arose, the government set up the Advisory Committee on the Revision of the Lists of Scheduled Castes and Scheduled Tribes (Lokur Committee Report) which was to advice on the proposals received by the government on revision of these lists in a “rational and scientific

manner”. The committee was specifically asked for its recommendations on whether communities listed as Scheduled Tribes in one area of a particular State or Union Territory (UT) should be recognised in other parts of the same State or UT as well as in other States.

A glance at the lists of tribes recommended for both inclusion and exclusion by the Lokur Committee throws further light on their considerations while determining the legal status of groups claiming tribal identity. Some of the reasons cited for inclusion of new tribes within the list include ‘very isolated’, ‘still living in caves’, ‘living in forest areas’, or more vaguely, ‘are primitive jungle tribes’, ‘having tribal characteristics’, ‘very backward tribe’, and ‘distinctive dress and customs’. Clearly, a mixture of geographical and locational features as well as primitiveness and backwardness account for the suggested Constitutional recognition of a range of tribes. On the other hand, the explanations for suggested exclusion from the list were ‘not a tribe’, ‘do not possess tribal characteristics’, ‘population insignificant’ and ‘assimilated with the general population’.

Beyond definitions of ‘tribes’, the Indian context has produced a situation in which classification of communities as Scheduled Tribes is not uniform throughout the country but varies based on often arbitrary administrative boundaries. Several committees have taken note of this anomalous situation, introduced through the Govt of India Act, 1935, whereby members of the same tribe from an ethnological or social point of view are recognised as Scheduled Tribes in one State or one part of a State and not in others. That is, the category of Scheduled Tribes, although distinct, was connected to an understanding of ‘tribal areas’ in that, until 1976, area restrictions were in operation with regard to recognition as a Scheduled Tribe. This meant that it was possible for X tribe to be recognised in district Y of a particular State but not in neighbouring district Z of the same State. Thus, ST status was linked to place, although the place itself need not be a Scheduled Area.

According to the Lokur Committee, these territorial restrictions acted as a barrier to spatial and social mobility, since moving out of the area in which their tribe is recognised would imply the loss of all benefits and privileges. Such restrictions were therefore, seen to be contrary to the goal of tribal integration which advocates the end

to tribal ‘isolation’ and the inter-mingling of populations. Despite recognition of the often bizarre consequences of area restrictions, the Lokur Committee refrained from recommending changes in the same since inter-state movement of tribes was deemed to be negligible at the time. Their report also dismissed the idea of an all-India Scheduled Tribes list, since the Constitution provides for lists to be made only at the State or UT level. The Lokur Committee recommended that the various tribes in the list should be administratively differentiated, so as to ensure that priority in development planning should be given to the more deprived, among the groups.

In 1976, the Removal of Area Restrictions (Amendment) Act was passed, which removed area restrictions on the recognition of Scheduled Tribes, making lists applicable to entire States rather than blocks and districts within States as was the case earlier. This led to a substantial increase in the tribal population as recorded in the census. Now, a tribe is included within the Scheduled Tribe list on a state-wide basis – although it is possible that the same tribe is not Scheduled Tribe in other states.

However, it has been noted that the sharp increase in recorded tribal population between the 1971 and 1981 censuses was not only due to the removal of area restrictions but due to misreporting to census officials by groups with nomenclatures sounding similar to that of certain Scheduled Tribes. Between 1971 and 1981, the population of Scheduled Tribes, as recorded in the Census, rose by 95 per cent in Maharashtra and 690 per cent in Karnataka. This occurred despite the fact that reporting oneself as a Scheduled Tribe in the census does not in any way support claims for Scheduled Tribe status under the Constitution.

Despite efforts made by various governments, there continue to be several anomalies in the scheduling of tribes. The National Commission for Scheduled Tribes (NCST) has noted that cases involving inclusion of communities which are scheduled in one state and non-scheduled in a neighbouring state need to be given priority in order that members are not denied benefits any further. The Banjaras, for example, are a recognised Scheduled Tribe settling in various parts of the country, including now in Delhi. However, the strong association between the idea of a tribe and that of rurality has led to the refusal of the Government of Delhi to list them as a Scheduled Tribe in the capital city – rather, they are included within the list of Scheduled Castes. 

Another curious distinction in the state of Assam is that between plains tribals and hill tribals, so the Garos, Karbis, Hajongs, Dimasas, Mon-Tai speaking peoples, Singphos,

Hmars, Nagas, hill tribals, lose their scheduled status once they come down to the plains and the Bodos, Lalungs, Mech-Kacharis, all plains tribals, lose their scheduled status if they go to the hills. There are also other anomalies in the process of scheduling such as instances of increasing the communities within the Scheduled Tribes list in the state without simultaneously reserving electoral constituencies for STs.

There is also the concern that some tribes classified under the Particularly Vulnerable Tribal Groups (PVTGs) have not yet been notified as Scheduled Tribes, a situation that the NCST has taken up. In recent years, commentators have questioned the established criteria for inclusion as both outdated (since ‘isolated existence’ does not hold true for most communities today, even those living in remote forest areas) and derogatory to tribal groups (the idea of ‘primitivism’ is insulting to tribal culture and identity).

De-notified,Nomadic and semi nomadic:-

In tribal classification, there are another sub classification. that is nomadic,semi-nomadic,de-notified tribal and particularly vulnerable tribals(PVTGs).

Origin of the de-notified tribes is traced to the Criminal tribal act,1871. Colonial Govt identified nearly 200 tribal groups as criminal tribals for the surveillance, confinement and discrimination. this led to the gross injustice in later period of time. Objective of the CTA,1871 was to confine the tribal group, who were believed to posses the criminal traits, which can be passed to one generation to another generation. It is the belief of the colonial govt that these group are completely addicted to the crime.

The CTA gave enormous powers to the local police force which could confine these communities to specific areas in order to control their criminal activities. In later years, another draconian provision was added to the Act which allowed for the creation of ‘settlements’ for criminal tribes, thereby forcibly sedentarising them and simultaneously forcing them into both agricultural and industrial work to ‘reform’ and ‘cure’ their criminal propensities. Another provision of the Act allowed for the creation of separate reformatory settlements for the children of these tribes.

The CTA was removed from the statute books in 1952 on the recommendation of the All India Criminal Tribes Inquiry Committee (1949) and henceforth, ‘Criminal Tribes’ came to be known as ‘De-notified Tribes’ instead. Even though the law has been repealed, the identification of these communities as ethnic groups having criminal antecedents continues to this day, leading to everyday discrimination in terms of access to education and jobs as well as brutal violence by neighbouring communities and police personnel.

However, a vast number of historical changes have jeopardised their livelihoods, beginning from the colonial period. Hunter-gatherers and pastoralists have been affected by the growing restrictions on access to grazing grounds and forests, the degradation of natural resources as well as increasing privatization of common property resources. Travelling goods and service communities have suffered as a result of mechanised production systems, the displacement of traditional building materials and the development of new infrastructure such as roads and railways. Further, entertainer communities have been destroyed as a result of wildlife conservation laws.

One major issue that has been raised with regard to de-notified and nomadic communities is the lack of proper enumeration and classification which made the planning and implementation of welfare schemes difficult. Some of these communities have been listed as Scheduled Tribes, others as Scheduled Castes, and some as Other Backward Classes (OBCs). Further, as is the case with the ST list itself, there are disparities in listings of the same group across States and even within the same State. For example, the Kaikadis are listed as Scheduled Castes in the Vidharba region of Maharashtra, as Vimukta Jatis and Nomadic Tribes (VJNTs) in the rest of this State and as Scheduled Tribes in the neighbouring State of Andhra Pradesh. Similarly, the Banjaras are a Scheduled Tribe in Andhra Pradesh, Odisha and Bihar, a Scheduled Caste in States like Karnataka, Delhi and Rajasthan, OBC in Uttar Pradesh and a De-notified Tribe in Maharashtra and Tamil Nadu. 

While these anomalies have not been addressed, the situation of DNTs is exacerbated by the fact that many groups are not included under any list and are denied access to affirmative action policies and development programmes despite the historical (and continuing) injustice faced by these peoples. Moreover, in the absence of reliable data about the population, geographical spread and development indices among these groups, it is hard for policy-makers to plan an effective intervention strategy forDNTs. According to some estimates, there are about 1500 nomadic and semi-nomadic communities and 198 De-notified Tribes in the country.

Particularly Vulnerable Tribal Groups (PVTGs):-

Certain tribes have been characterised as Particularly Vulnerable Tribal Groups (PVTGs) (earlier known as Primitive Tribal Groups) on the basis of their greater ‘vulnerability’ even among the tribal groups (although the precise contours of their vulnerability has not been clearly defined). PVTGs, currently including 75 tribal groups, have been identified as such on the basis of the following criteria:

1) forest dependent livelihoods, 

2) pre-agricultural level of existence, 

3) stagnant or declining population, 

4) low literacy rates and 

5) a subsistence-based economy.

As per the 2001 census, these 75 PVTGs had a total population of 27,68,322. The majority of the PVTG population lives in the six States of Maharashtra, Madhya Pradesh, Chhattisgarh, Jharkhand, Odisha, Andhra Pradesh and Tamil Nadu. Odisha has 13 PVTGs, the largest number for any State. Even within the groups labelled PVTGs by the State, there is considerable differentiation, most obviously with respect to size – there are 19 groups with population of less than 1000 persons and 8 groups with population of more than one lakh.

The vulnerability of the PVTGs primarily stems from the loss of their traditional livelihoods, habitats and customary resource rights through the gradual exploitative intrusion of the market and State into their areas in the form of industrial projects, conservation efforts, tourism, and the forest bureaucracy and so on. These conditions have led to the loss of their land and resources resulting in chronic malnutrition, starvation and ill health among these groups. The groups most under threat have been identified as the Shompens, Sentinelese and Jarawas of the Andaman Islands; the Bondos of Odisha; Cholanaickans of Kerala; Abujh Marias of Chhattisgarh and Birhors of Jharkhand. Some PVTGs such as the Paudi Bhuiyan in Odisha are still not included within the list of Scheduled Tribes.

It must be noted that all tribes in the list of PVTGs have not been granted Scheduled Tribe (ST) status. For example, the Abujh Maria has only recently been granted ST status in the State of Chhattisgarh even though they have been in the PVTG list earlier. The rationale behind inclusion and exclusion must be made clear and all discrepancies must be immediately addressed. Further, of the States with PVTGs Kerala, Karnataka, Tamil Nadu, Uttar Pradesh and West Bengal do not have Scheduled Areas, thereby increasing the vulnerability of these tribes, who lack the protections and rights offered by the Fifth Schedule and the Provisions of Panchayat (Extension to Scheduled Areas) Act, 1996.

Their dwindling population, socio-economic vulnerability made them more vulnerable. They are treated as endangered and on verge of extinction. Due to this fact, These groups are  denied basic services such as legal contraception in various states(ex:Chhattisgarh).Such a policy denies members of PVTGs the autonomy to make free and informed reproductive choices, and particularly denies any agency and bodily autonomy to women of these communities, who have to bear the burden of the denial of access to sterilisation facilities. On other hand Kattunayakan tribes in kerala are subjected to forced sterilisation by the health officials to meet their challenges in official work. In this way, These people are coerced and subjected to different types of exploitation.

Tribal groups such as the Sahariya in Baran, Rajasthan continue to work as bonded labour for rich landlords for generations. Many of them are agricultural labourers working under the hali system which is one of the forms of bonded labour banned under the Bonded Labour (Abolition) Act 1976.13 Many Sahariyas were tricked into accepting loans with exorbitant interest rates and subsequently have had to work for big landowners without wages. Tribal indebtedness is a huge problem, often leading to situations of bonded labour. Even among the Juang PVTGs in Odisha, many families are forced to labour in repayment of their debt in a system locally called goti – despite the prevalence of the central law as well as the Orissa Debt Bondage (Abolition and Regulation) Act, 1948. Action must be taken to ensure that all PVTGs are removed from bondage and freed of their debts.

Literacy of the PVTGs is low when even compare to the other schedule tribes in the state. Integrating them into educational system is becoming failure due to the one-size-fits for all approach followed by administration,who are not at all looking at the curriculum that suitable to the PVTGs.

Many number of PVTGs are moved out of the their customary habitat forcefully for the development projects such as dams, construction activities and national parks, tiger reserves e.t.c.,For example, Baiga families in Chattisgarh are moved out of their forest for the achanakmar tiger reserve. kattunayakan families in tamil nadu, who are traditionally honey collectors, are prohibited from collecting the honey from the mudumalai wildlife sanctuary, where their habitat exists. This type of usurpation of their habitat and livelihood is causing the more vulnerability in the hearts of the tribal people. 

Habitat rights for PVTGs as guaranteed by the Forest Rights Act must be granted to them and definitional as well as procedural ambiguities must be cleared up. Section 3(1)(e) of the FRA recognises the “rights including community tenures of habitat and habitation for primitive tribal groups and pre-agricultural communities” and Section 2(h) defines ‘habitat’ as the “area comprising the customary habitat and such other habitats in Reserved Forests and protected forests of Primitive Tribal Groups and preagricultural communities and other forest dwelling Scheduled Tribes”. The FRA Amendment Rules now provide that, “In view of the differential vulnerability of PVTGs, the District Level Committee shall ensure that all PVTGs are conferred habitat rights, in consultation with their concerned traditional institutions and that their claims for habitat rights are filed before the concerned Gram Sabhas”.

State Governments need to be urged to recognise habitat rights over revenue land in addition to habitat rights over forest land (granted by the FRA). Except for the Madia in Maharashtra and the Chuktia Bhunjia, Mankadia, Dongria-Khond, Juang, and Khadias in Odisha, there have been few efforts to claim habitat rights. In order for this to occur, it would be necessary for the government to clear up the confusions regarding definition of habitat; clashes between traditional and State/district boundaries; claims to habitat rights in protected areas such as tiger reserves; and habitat rights for displaced PVTGs.

What has often occurred in the past is that development programmes have been imposed on PVTGs without considering their own priorities and development needs. In the current moment, a move away from the one-size-fits-all approach to development is absolutely essential.16 An enabling environment must be created in which communities are empowered to make their own choices about the path of development they would like to follow and the livelihoods they wish to adopt. No development project can be imposed on PVTGs – instead all welfare projects/plans/schemes must move forward only with their informed consent as well as their participation in the process of planning and decision-making.

 As the National Advisory Council recommendations have noted, there is a significant risk that vulnerabilities may be exacerbated rather than reduced through government intervention and therefore due caution must be exercised in all cases. Programmes should not have the effect of undermining their self-sufficiency and their own development priorities must be the driving force of government action. Vulnerabilities must be addressed through taking account of their food production and distribution systems and their rich repertoire of traditional skills and knowledge.

Scheduled Areas

In the wake of tribal rebellions in the nineteenth century, the British became convinced of the vulnerability of tribal populations in the form of various ‘outsiders’ and assumed the role of paternalist protectors of tribals against the non-tribal exploiters. This brand of protectionism, however, worked to justify British presence in tribal areas as the guardian of their interests. Indeed, British policy toward tribals followed a contradictory path: on the one hand, it advocated protection of these areas through exclusion from the operation of general laws and on the other hand, it facilitated assimilation with the larger social structures through the market.

Even prior to the development of a delineation of the characteristic features of a tribe, there existed a separate system of governance for predominantly tribal areas marked by special legal provisions and the non-applicability of general laws in these areas. Thus, the creation of distinctive tribal spaces in legal-administrative terms preceded the classification of specific groups as tribes based on established criteria. These areas are referred as Scheduled Areas in the post-Independence period. According to the Govt of India act,1935,Colonial administration identified some areas as partially excluded areas and excluded areas. they gave special powers to these areas. Later, Partially excluded areas are designated as the schedule areas. 

One of the primary features of the Partially Excluded areas was that no general laws would apply to these areas, unless the Governor saw it fit to apply these legislations.In the post-1947 period, however, this feature was altered vis-à-vis the Fifth Schedule areas since now all Central and State laws would automatically apply to tribal areas unless the Governor took the decision to prevent application or modify/amend the legislation in keeping with the circumstances of the Scheduled Areas. Rarely do Governors invoke this power leading to a situation where in all legislations, irrespective of their suitability in Scheduled Areas, are operational without any amendment or alteration. At the same time, one of the assumptions behind the creation of these spaces was the idea that the tribes could not cope with the complexity of representative institutions.

The Montagu-Chelmsford Report which was to later form the basis of the Government of India Act, 1919 even noted that “there was no political material on which to found political institutions” in these areas. The demand for political autonomy by tribals was overlooked, despite several ongoing agitations for political rights. Further, this view neatly separated the related issues of social and economic well-being and political power. The resultant policies were based on the economic integration of tribals through development programmes while attempting to ensure that the cultural aspects of their society such as language and customs were left untouched. This understanding of the tribal question continued into the post-colonial period. The Constitution of India continued with this system of governance through the separate, but inter-linked categories of Scheduled Tribes and Scheduled Areas. 

Similar to Scheduled Tribes, the definition for Scheduled Areas (under the Fifth Schedule of the Constitution) is “such areas as the President may by order declare to be Scheduled Areas”. The criterion for the declaration of an area as a Scheduled Area was identified by the first Scheduled Areas and Scheduled Tribes Commission (Dhebar Commission). 

The features of such an area were: 

1. the preponderance of tribal population, 

2. compactness and reasonable size of the area, 

3. under-developed nature of the area, and 

4. marked disparity in the economic standard of the people. 

Several orders relating to Scheduled Areas have been passed by the President over the years. The present Scheduled Areas follows the pattern of the erstwhile Partially Excluded Areas, although more orders regarding Scheduled Areas have been passed by the President in the post-Independence period. Since 1976, there have been efforts to ensure that the Scheduled Areas coincide with the Tribal Sub-Plan areas through several orders, although this task is still not complete.

Large number of areas are excluded from the list of schedule area list. For example:- karnataka has 50 recognised Schedule Tribes(S.T), Tamil Nadu has 37 and kerala has 36 recognised Schedule tribes. Still, these areas are excluded from the list of schedule area list. 

A large proportion of the tribal population of South India belongs to the Nilgiri hills region, covering all these three States. Although, a survey by the British in 1847 apparently revealed that about 78 per cent of the people in the Nilgiri plateau region were tribal hunter-gatherers, pastoralists and shifting cultivators, these areas were never scheduled, possibly due to British economic interests in the emerging plantation economy. Tribals in this region face serious problems of landlessness, land alienation, malnutrition, bonded labour, eviction from National Parks and Sanctuaries, as well as displacement due to mines and hydroelectric projects. However, by and large, discussions around tribal rights tend to focus on Fifth and Sixth Schedule Areas to the neglect of other non- Scheduled regions with substantial tribal populations.

On the question of Scheduled Areas, the Bhuria Commission (2002-2004) requested the governments in the various States with sizeable tribal populations to comment on the existing criteria for scheduling of areas through an assessment of their validity within the contemporary context and through recommendations that could make the given criteria more specific and precise. For example, it remains unclear what exactly ‘preponderance’ of tribals means in terms of percentages of the population. There is also the question of the size of the administrative unit within which ‘preponderance’ is necessary – at the level of the district or the block or the village. This is an especially important question given that there has been considerable in-migration of non-tribals to Scheduled Areas as well as non-Scheduled areas with large tribal populations. This influx has changed the relative population of tribal and non-tribal communities in the area, often worsening the disparity between the two groups.

Chhattisgarh govt mandated 50% of tribal population and grama sabha as viable unit. Madhya pradesh mandated 40% population and gram panchayat for the eligibility of fifth schedule areas. There is no clarity of norms to declare an area as schedule area.

The parameters for further inclusion of non-Scheduled Areas within the ambit of the Fifth Schedule must be debated by the central and State Governments and action must be taken in this regard immediately. The situation wherein a substantial number of Scheduled Tribes reside outside of the Scheduled Areas needs to be addressed to ensure that tribes are not denied the protections offered by the Constitution and other legislations pertaining to Scheduled Areas. Given the onslaught of global market forces on tribal lands, the extension of such provisions is of the utmost importance and urgency.

Legal and Administrative frame work of triabls:-

constitutional arrangements for the Scheduled Tribes follow different patterns and provide for both protections from non-tribals (particularly on land alienation, money-lending and political representation) and provisions for autonomous decision-making on various matters. These frameworks constitute the recognition of the adverse inclusion of tribal communities within the global political economy as well as the distinctiveness of tribal culture and identity threatened by the cultural imperialism of the non-tribal majority. At the same time, it must be noted that several of these provisions are paternalistic in nature and are not entirely adequate to the onerous task of ensuring the protection of tribal land and resources given the current context of liberalisation.

(still, Non-tribals are vehemently expressing their cultural, social, economical and political hegemony )

The belief that tribal areas required special laws led to the setting up of the Advisory Committee on Fundamental Rights and Minorities by the Constituent Assembly,1947. This body appointed three sub-committees in 1947 to look into specific tribal areas and make suggestions for their administration and functioning. The first was authorized to look into the excluded and partially excluded areas ‘other than Assam’ and was headed by Shri. A.V. Thakkar, the second to examine tribal areas within undivided Assam chaired by Shri. Gopinath Bardoloi, and the third was to analyse the situation of tribes in the North Western Frontier Province. The proposals of the first two committees were later incorporated as the Fifth and Sixth Schedules of the Indian Constitution.

The report of the Joint Sub-Committee described tribal society as “lacking in such civilizing facilities as roads, schools, dispensaries and water supply” .Tribal people are described as “extremely simple people who can be and are exploited with ease by plainsfolk”. Hence, a policy of protectionism would be necessary since “sudden disruption of the tribal customs and ways by exposure to the impact of a more complicated and sophisticated manner of life is capable of doing great harm” At the same time, it was argued that isolationism was not the solution since only a continuous process of assimilation into mainstream Indian (and Hindu) society would lead to their ‘development’. The debate on the tribal question took place on 5th and 6th September, 1949 and the main focus remained on this issue - “reconciling the diversity of custom with the ‘national life of the country”.

The Fifth Schedule (Article 244(1)) of the Constitution finally adopted by the Constituent Assembly did not include several of the recommendations of the subcommittees and Assembly members. The Fifth Schedule contains provisions relating to the administration of Scheduled Areas other than in Northeast India. First, areas can be designated Scheduled Areas on the order of the President, who can similarly declare that certain parts of/entire Scheduled Areas cease to be such. Second, the Governor of each State having Scheduled Areas shall annually, or whenever required by the President of India, submit a report to the President regarding the administration of Scheduled Areas. Currently, certain parts of nine States of the country are covered by the Fifth Schedule. The broad list of Scheduled Areas is as follows:

Part B of the Fifth Schedule provides for the creation of a Tribes Advisory Council (TAC) in each State having Scheduled Areas (and if the President directs, also in States having Scheduled Tribes but not Scheduled Areas), consisting of twenty members of which three-fourths must be representatives of Scheduled Tribes in the Legislative Assembly of that State. The duty of the TAC is to advise on matters pertaining to the “welfare and advancement” of the Scheduled Tribes “as may be referred to them by the Governor”. Further, the Fifth Schedule grants extensive powers to the Governor who, by public notification, may direct that a law enacted by the Parliament or the State Legislative Assembly shall not apply to a Scheduled Area, or may apply subject to certain amendments or restrictions as he/she specifies. 

The Governor may only make such regulations on consultation with the concerned Tribes Advisory Council and subject to the final assent of the President. The section states: 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. In particular and without prejudice to the generality of the foregoing power, such regulations may- 

1. prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area; 
2. regulate the allotment of land to members of the Scheduled Tribes in such area;
3. regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area.

These provisions were viewed as essential in view of the historical fact that adivasi livelihoods depend on the land and that alienation of resources had led to considerable impoverishment of adivasis during the colonial period. Nonetheless, the initial recommendations of the committees and the earlier draft of the Fifth Schedule accorded far greater autonomy to tribal areas than the final version, which watered down the role of the Tribes Advisory Council to a mere consultant rather than an autonomous decision-making body. A Member of the Constituent Assembly, Shri. Jaipal Singh, had argued against this version of the Schedule and demanded instead: a statutory obligation that a report on the Scheduled Areas and Tribes be submitted by the Governor annually, that TACs be compulsorily set up in all States having Scheduled Tribes and not just in those States having Scheduled Areas, that the Governor should be bound to carry out the decisions of the TAC regarding the modification and amendment of laws made by Parliament or the State Legislature. Singh noted that the new draft (the one finally incorporated into the Constitution) made the Fifth Schedule considerably less powerful than he had hoped and “emasculated the Tribes Advisory Council”. Lamenting the lack of powers to the

tribal people themselves and their representatives in the TAC, Singh stated:

“The whole pattern of the original draft was to bring the Tribes Advisory Council into action. It could initiate, originate things, but, somehow or other, the tables have now been turned. The initiative is placed in the hands of the Governor or Ruler of the State.”

Another Constituent Assembly member, Shri. Yudhishtir Misra, held that the TAC should not only be allowed to advise on the “welfare and advancement” of tribes(only), but also more broadly on the administration of the Scheduled Areas. Moreover, Misra warned that the advisory powers of the TAC should not be circumscribed by the whims and fancies of the executive as seemed likely given the current form of the Fifth Schedule – which states that the TAC can only advise on matter referred to it by the Governor. However, their suggestions were refused by their colleagues in the Assembly who believed that the work of the TAC must not be of a political nature on the grounds that it might lead to separatism and that tribals would not themselves be able to comprehend the complexities of law-making. Rather than grant genuine autonomy to tribal India, the Fifth Schedule paternalistically placed their welfare in the hands of a representative of the Centre.

Unlike the Sixth Schedule wherein Autonomous District Councils have been given significant legislative, judicial and executive powers on several important matters, the Fifth Schedule places the governance of tribal areas in ‘mainland’ India largely in the hands of the Governor. This occurred for two reasons: one, mainland areas had large non-tribal populations and two, the tribes of the Northeast were seen as more advanced and capable of self-governance unlike the tribes in other parts of the subcontinent. As a result, tribes were given ‘protection’ from outside intrusions and land alienation but were not granted much autonomy on political and economic matters.

Governor’s report:-

the Governor’s report is expected to contain an objective and independent assessment of the quality of the administration of Scheduled Areas, the implementation of protective safeguards for tribals, and the regulations made by the Governor in keeping with his powers under the Fifth Schedule. It should further cover issues of displacement and rehabilitation, law and order problem, tribal protests, atrocities against tribes, and so on. This report is required to be placed before the TAC for their advice and recommendations. On the basis of this Report, the Union Government may issue directives to the State Governments for better administration of these areas.

 In reality governor’s report doesnt possess the information regarding the present status of the tribal people in Schedule Area. It largely borrows the list of schemes and expenditure details from various tribal departments. It contain the exhaustive data without the analysis of the present situation of the Tribal people.This plagiarism without the reality doesn’t make the executive accountable,which was envisaged by the constituent assembly.

Bhuria commission recommended the inclusion of the Action Taken Report in the governor’s report. So far, No state has taken tangible steps in this direction. Apart from ATR, It also recommended the information regarding the Peace and Good Governance, Law and Order situations. No substantial information is conspicuous in the report. 

Apart from the Lack of Quality, Governor’s report is also crippled with the irregularity. For example, Govt of andhra pradesh didnt submit the report for consecutive four year in the past decade. Many states like, Madhya Pradesh and others also follow the same pattern. 

Though Governor has used his discretionary powers under V schedule, Bureaucrat’s indifferent attitude and their perfunctory works didnt bring any progress in the V-schedule areas.

Generally, Governor exercise his power with aid and advice of the council of ministers. this is causing the leak in the accountability of the executive. Thats why bhuria commission recommended the formation of the special governor’s cell to recommend over the welfare and advancement of the tribal people. No state has taken tangible work in that direction. 

Irregular submission of report, Lack of quality and Indifferent attitude of the bureaucrats,lack of accountability of the executive and other irregularities are causing the underdevelopment in the schedule areas.

Legal and Administrative framework of the North-East:-

Colonial administrator announced the entire north easter region as the excluded area and also introduced the innerline permit system in 1873 in the name of the protection of tribal people. This served more for the isolation of the people from rest of india and exploitation of the people of North-East in the name of religion and economy.

This isolationist policies of the British are taken away with enactment of the Constitution of India(COI). Article 244(2) of Constitution introduced the sixth schedule for the protection and welfare and advancement of the tribal people in north-east.

Sixth schedule introduced the  Autonomous and Regional District Council,which have powers over following matters:

1. allotment, occupation, or the setting apart of land, other than reserved forests, for the purpose of agricultural or grazing or for residential or other nonagricultural purposes or for any other purpose likely to promote the interests of the inhabitants of any village or town (Provided that nothing in such laws shall prevent the compulsory acquisition of any land, whether occupied or unoccupied for public purpose) 

2. management of any forest not being a Reserved Forest

3. use of any canal or water course for purpose of agriculture

4. regulation of the practice of jhum or any other form of shifting cultivation

5. establishment of village or town committees or Councils and their powers

6. any other matter relating to village or town administration, including village and town police, public health and sanitation

7. appointment of succession of chiefs or headmen

8. inheritance of property

9. marriage and divorce

10. social custom 

Sixth Schedule consists of following areas, where Autonomous District and Regional Councils are constituted:

PART I

1. The North Cachar Hills District.

2. The Karbi Anglong District.

3. The Bodoland Territorial Area District.

PART II

1. Khasi Hills District.

2. Jaintia Hills District.

3. The Garo Hills District.

PART IIA

Tripura Tribal Areas District 

Part III

1. The Chakma District.
2. The Mara District.
3. The Lai District.

These Autonomous and Regional councils are conferred judicial, legislative and administrative powers for the protection and development of the people in 6th schedule area. 

Apart from sixth schedule, North-East is also governed by state laws and special provisions given by central government. For example article 371-A of indian constitution gave special powers to state of nagaland. 

Though these District and Regional councils have the autonomy as per the constitution, these don’t exercise the power in reality. these councils receives small amounts in the forms of taxes and duties. Such small amounts are not sufficient for the development of the area. They are majorly dependent upon the state governments and central governments. 

Autonomy of these councils is curtailed by various statues and laws. For example, paragraph-12A(all legislations passed by state government take precedence over those passed by the councils). inserted in the schedule curtails the autonomy of the Manipur. Apart from this, major powers(such as judicial and executive)of these councils are virtually ripped and assumed by commissioners and district magistrates. 

Resolutions of these councils are becoming the law because of the obstruction from the governor. He also has the power to dissolve the councils. After the Dissolution there are no provisions for the time limit to conduct re-election.  Unlike Election Commission, there are no special institutions for conducting elections to these councils.

these are various leaks that cripple functioning of the councils and that causes under development of the north-east.