24 National Commission & Committees on Development and Welfare of Scheduled Areas/Tribal Areas and Scheduled Tribes.

Dr. Vijeta Dr. Vijeta

Contents

Introduction

1. Scheduled Tribes and Specific Safeguards

2. Tribal Areas

3. System of Administration

4. Formation of an Autonomous State Comprising Certain Tribal Areas

5. Amendments for STs Panel, Protection of Non-Tribals‟ Rights Passed

6. Article 338A. National Commission for Scheduled Tribes

Summary

Learning objectives

Through this content, one will be able
To know about the national commission & Committees on Development and Welfare of Scheduled Areas/Tribal Areas
To know about the national commission & Committees on Development and Welfare of Scheduled Tribes in India
To know about the constitutional provisions administered for development of scheduled/tribal areas.
To know about the constitutional provisions administered for welfare of scheduled/tribal areas.

Introduction

1. Scheduled Tribes and Specific Safeguards

Our constitution does not define the term scheduled tribe but according to article 342, the President by public notification specify the tribes or tribal communities which shall for the purpose of this constitution be deemed to be scheduled tribes.

The specific safeguards provided for the Scheduled Tribes are as mentioned below:

(i) Article 244: According to Clause (1), the provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam, Meghalaya, Mizoram and Tripura. According to Clause (2), the provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the States of Assam, Meghalaya, Mizoram and Tripura.

(ii) The First Provision to Article 275(1) of the Constitution of India guarantees grants from the Consolidated Fund of India each year for promoting the welfare of Scheduled Tribes and in pursuance of this Constitutional obligation, the Ministry of Tribal Affairs provides funds through the Central

(iii) Fifth Schedule contains provisions regarding the administration and control of the Scheduled Areas and Scheduled Tribes. There are nine States having Scheduled Areas, viz., Andhra Pradesh, Gujarat, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa, Rajasthan, Chhattisgarh and Jharkhand. The Governors of these States have special responsibilities and powers. These States have Tribe Advisory Councils (TACs). (In addition, Tamil Nadu and West Bengal, which do not have any Scheduled Areas, also have statutory TACs). The Governors of these States have the power to make regulations for the peace and good governance of any Scheduled Area particularly for the following purposes:-

(a) To prohibit or restrict the transfer or land by or among members of the Scheduled Tribes in such areas,

(b) To regulate the allotment of land to members of the Scheduled Tribes in such area,

(c) To regulate the carrying on of business as money lender by persons who lend money to members of the Scheduled Tribes in such area.

(iv) Sixth Schedule contains provisions relating to the administration of the Tribal Areas in the States of Assam (North Cachar Hills District and Karbi Anglong District), Meghalaya, Mizoram and Tripura (Autonomous Hill District). There are Autonomous District Councils and Autonomous Regional Councils in these areas which have a long tradition of self-management systems. These Autonomous Councils not only administer the various Departments and developmental programmes but they also have powers to make laws on a variety of subjects, e.g., land, forest, shifting cultivation, village or town administration including village or town police and public health and sanitation, inheritance of property, marriage and divorce and social customs. The Sixth Schedule of the Constitution of India created Autonomous Districts within Assam in order to preserve tribal autonomy and protect the cultural and economic interests of the hill tribes. The hill regions of North-East India have a history of being governed by different criterion in comparison to the rest of India. While most of India with the exception of the princely states was governed by the standard colonial administration, the hill regions of Assam were ruled by the British indirectly. The British did not interfere with their traditional system of authority. The issues relating to land, inheritance, forest, dispute resolutions, etc., were dealt with according to the customary laws, and through the arbitration of clan and tribal chiefs. They were declared “backward areas” according to the Government of India Act, 1919. The Government of India

Act, 1935 turned them into, “excluded” and “partially excluded” areas. There was some differences between the “excluded” and “partial excluded” areas. The former were not represented in the legislature of Assam though they were located in the province of Assam. The “partially excluded” area was privileged to have some legislative experience within the state of Assam. The “excluded areas” were administered by the Governor-in-Council as his “reserved jurisdiction”. On the “partially excluded” areas there was some authority of the provincial legislature. Jurisdiction of the courts of British India was limited in such areas.

2. Tribal Areas

The tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram are separately dealt with and provisions for their administration are to be found in the Sixth Schedule to the Constitution. Part X of the Constitution is concerned with the administration of Scheduled Areas and Tribal Areas. The Constitution makes special provisions for the administration of certain areas called Scheduled Areas, presumably because of the backwardness of the people of these Areas. Subject to legislation by Parliament, the power to declare an area as a “Scheduled area” is given to the President and the President has made the Scheduled Areas Order, 1950, in pursuance of this power. The tribal areas in the States of Assam, Meghalaya and Mizoram area separately dealt with and provision for their administration are to be found in the Sixth Schedule to the Constitution.

3. System of Administration:

The Fifth Schedule of the Constitution deals with the administration and control of Scheduled Areas as well as of Scheduled Tribes in States other than Assam, Meghalaya and Tripura. The main features of the administration provided in this Schedule are as follows: The Executive power of the Union shall extend to giving directions to the respective States regarding the administration of the Scheduled Areas. The Governors of the State in which there are “Scheduled areas” have to submit reports to the President regarding the administration of such Areas, annually or whenever required by the President. Tribes Advisory Councils are to be constituted to give advice on such matters as welfare and advancement of the Scheduled Tribes. The Governor is authorised to direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or shall apply, only subject to exceptions or modifications. The Governor is also authorised to make regulations to prohibit or restrict the transfer of land by, or among members of the Scheduled Tribes. These provisions of the Constitution relating to the administration of the Scheduled Areas and Tribes may be altered by Parliament or by ordinary legislation. The Constitution provides for the appointment of a Commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes in the States. The President may appoint such Commission at any time, but the appointment of such Commission at the end of 10 years from the commencement of the Constitution was obligatory. Accordingly a Commission under the chairmanship of Shri Dhebar was appointed in 1960. Its report was submitted in 1961. The tribal areas are to be administered as autonomous districts. These autonomous districts are not outside the executive authority of the Government of Assam but provision is made for the creation of District Councils and Regional Councils for the exercise of certain legislative and judicial functions. These Councils are primarily representative bodies and they have got the power of law-making in certain specified fields such as management of forests other than a reserved forest, inheritance of property, marriage and social customs, and the Government may also confer upon these councils the power to try certain suits or offences.

4. Formation of an Autonomous State Comprising Certain Tribal Areas:

According to Article 244 of the Constitution the VI Schedule lays down special provisions for the protection of the interest and cultural identities of the hill tribe of North. The most important provisions of the VI Schedule is creation of the Autonomous District Councils. While tribal‟s of some of the North-Eastern states have the Autonomous District Councils, Arunachal Pradesh, Nagaland and greater part of Mizoram do not have this. The Inner Lines Regulation exists for three states, i.e., Arunachal Pradesh, Mizoram and Nagaland, and North Cachar district of Assam.

5. Amendments for STs Panel, Protection of Non-Tribals’ Rights Passed:

The Lok Sabha unanimously passed two Constitution Amendment Bills. The first Bill empowers the Government to set up a separate National Commission for the Scheduled Tribes, while the second bill seeks to protect the rights of the non-tribal in the newly-elected Bodo Territorial Council (BTC) in Assam. The LS passed the Constitution (Eighty-Ninth Amendment) Act, 2003 making provision for the setting up of a National Commission for the Scheduled Tribes, and another to keep intact the existing representation of tribal‟s and non-tribal‟s in the Assam Legislative Assembly. The amendment focuses on the need for setting up a separate commission for the Scheduled Tribes by bifurcating the existing National Commission for the Scheduled Castes. The Ninety-Ninth amendment seeks to protect the rights of the non-tribals in the Bodo Territorial Council. The proposed commission for the Scheduled Tribes would comprise a chairperson and two other members and the National Commission for the Scheduled Castes shall have chairperson, vice- chairperson and three other members. Notwithstanding anything in this Constitution, Parliament may, by law, form within the State to Assam an autonomous State comprising (whether wholly or in part) all or an, of the tribal areas of the Sixth Schedule and create therefore (Article 244A) (i) A body, whether elected or partly nominated and partly elected, to function as a Legislature for the autonomous State, [Article 244A (1) (a)] or (ii) A Council of Ministers, [Article 244A (1) (b)] or both with such Constitution, powers and functions, in each case, as may be specified in the law.

Any such law as is referred to in clause (1) may, in particular:

(i) Specify the matters enumerated in the State List or the Concurrent List with respect to which the Legislature of the autonomous State shall have power to make laws for the whole or any part thereof, whether to the exclusion of the Legislature of the State of Assam or otherwise [Article 244A(2)(a)];

(ii) Define the matters with respect to which „the executive power at the autonomous State shall extend [Article 244A (2) (b)];

(iii) Provide that any tax levied by the State of Assam shall be assigned to the autonomous State in so far as the proceeds thereof are attributable to the autonomous State [Article 244A (2) (c)];

(iv) Provide that any reference to a State in any article of this Constitution shall be construed as including reference to the autonomous State [Article 244A (2) (d)]; and

(v) Make such supplemental, incidental and consequential provisions as may be deemed necessary [Article 244A (2) (e)].

An amendment of any such law as aforesaid in so far as such amendment relates to any of the matters shall have no effect unless the amendment is passed in each House of Parliament by not less than two-thirds of the members present and voting [Article 244A(3)]. The modern institutions of the Autonomous District Councils are elected bodies. They are controlled by the new generation which has benefited from modern means of education. This placed the new elite in confrontation with the traditional elite who have considered it as an encroachment on their position. In fact, they have been demanding its abrogation. Also a section of the non-tribals have been seeking the removal of the Autonomous District Councils. They argue that the VI Schedule was introduced to protect the interests of the tribals while they would be constituents of Assam. But with the formation of separate states there was no need for the Autonomous District Councils. Besides, there is no clear demarcation of the jurisdiction of the ADCs, which result in overlapping of the jurisdiction of the ADCs, state legislature and the village councils. This causes inconvenience to the people. Since the British days a system of

Inner Line was drawn up under the Bengal Eastern Frontier Regulation, 1873. It prohibits the travel of outsiders into the area beyond the Inner Line without the government‟s permission. Aimed primarily at protecting the people of the covered area from the exploitation of the plainsmen, this also preserved the British control there and hindered the integration of the people of the hills and plains. The Inner Line is a subject of hot controversy in northeast India. The Constitution (Ninetieth Amendment) Act, 2003 has ensured a fair representation of the non- tribal in the Legislative Assembly of the Bodo Land Territorial.

Our constitution provides National Commission for Scheduled Tribes in article 338A.

6. Article 338A: National Commission for Scheduled Tribes-

(1) There shall be a Commission for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may be rule determine.

(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.

(4) The Commission shall have the power to regulate its own procedure.

(5) It shall be the duty of the Commission—

(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;

(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;

(c) to participate and advise on the planning process of socio-economic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State;

(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;

(e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes; and

(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.

(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.

(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.

(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely: —

(a) Summoning and enforcing the attendance of any person from any part of India and examining him on oath;

(b) Requiring the discovery and production of any document;

(d) Requisitioning any public record or copy thereof from any court or office;

(e) Issuing commissions for the examination of witnesses and documents;

(f) Any other matter which the President may, by rule, determine.

(g) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes.

Summary

The Constitution of India provides for uniform rule throughout the country but certain regions of the country are governed by special provisions. These provisions ensure the protection of cultural identifies customs and economic and political interests of the original inhabitants of these areas. These regions include the tribal hills of the North Eastern States, i.e., Assam, Arunachal Pradesh, Manipur, Nagaland, Mizoram, Meghalaya and Tripura, the state of Jammu and Kashmir and the regions known as the “Scheduled Areas”. “The Scheduled Areas” are those tribal inhabited areas which are located in other parts of the country than the North-East India. These areas are located in the states of Andhra Pradesh, Bihar, Chhattisgarh, Gujarat, Himachal Pradesh, Madhya Pradesh, Jharkhand, Maharashtra, Orissa and Rajasthan. Besides these areas, some other regions of the country also are governed by the special provisions. (i) Article 244: According to Clause (1), the provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam, Meghalaya, Mizoram and Tripura. According to Clause (2), the provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the States of Assam, Meghalaya, Mizoram and Tripura.

Sector Scheme “Grants under Article 275(1) of the Constitution”. The objective of the scheme is to meet the cost of such projects for tribal development as may be undertaken by the State Governments for raising the level of administration of Scheduled Areas therein to that of the rest of the State. The scheme covers all the 21 Tribal Sub-Plan States and 4 other tribal majority States of the country. The grants are to be used essentially for creation and up gradation of critical infrastructure required bringing the tribal areas with the rest of the country. The basic purpose is to create opportunities conducive to income and employment generation. Due emphasis is given to infrastructure in sectors critical to enhancement of human development indices such as in health, education, income generation etc. (iii) Fifth Schedule contains provisions regarding the administration and control of the Scheduled Areas and Scheduled Tribes. There are nine States having Scheduled Areas, viz., Andhra Pradesh, Gujarat, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa, Rajasthan, Chhattisgarh and Jharkhand. The Governors of these States have special responsibilities and powers. These States have Tribe Advisory Councils (TACs). (In addition, Tamil Nadu and West Bengal, which do not have any Scheduled Areas, also have statutory TACs). National Commission for Scheduled Tribes comes under Article 338A.

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REFERENCES/SUGGESTED READINGS

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