Part B: Administration and control of Scheduled Areas and Scheduled Tribes

Articles 189(a) and 190(1), Draft Constitution of India 1948

Part II

Provisions as to the States of Madras, Bombay, West Bengal, Bihar and the Central Provinces of Berar, and Orissa

3. Application of Part II: The provisions of this Part shall apply to the States of Madras, Bombay, West Bengal, Bihar, the Central Provinces and Berar, and Orissa.

4. Tribes Advisory Council: (1) As soon as may be after the commencement of this Constitution, there shall be established in the States of Madras, Bombay, West Bengal, Bihar, the Central Provinces and Berar, and Orissa, a Tribes Advisory Council consisting of not less than ten and more than twenty-five members, of whom, as nearly as may be, three-fourths shall be elected representatives of Scheduled Tribes in the Legislative Assembly of the State.

(2) It shall be the duty of the Tribes Advisory Council generally to advise the Government of the State on all matters pertaining to the administration of the scheduled areas, if any, and the welfare of the Scheduled Tribes in the State.

(3) The Governor may make rules prescribing or regulating as the case may be-

(a) the number of members of the Council, the mode of their appointment and of the appointment of its Chairman and of the officers and servants thereof;
(b) the conduct of its meetings and its procedure in general;
(c) its relations with officials and local bodies in the State; and
(d) all other incidental matters.

5. Law applicable to scheduled areas: (1) The Governor may, if so advised by the Tribes Advisory Council for the State, by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a scheduled area or any part thereof in the State or shall apply to a Scheduled area or any part thereof in the State subject to such exceptions and modifications as he may with the approval of the said Council specify in the notification:

Provided that where such Act relates to any of the following subjects, that is to say-
marriage;

a) inheritance of property;
b) social customs of the tribes;
c) and, other than lands which are reserved forest under the Indian Forest Act, 1927 or under any other law for the time being in force in the area in question, including rights of tenants, allotment of land and reservation of land for any purpose;
d) any matter relating to village administration including the establishment of village panchayats;
e) the Governor shall issue such direction when so advised by the Tribes Advisory Council.

(2) The Governor may, after consultation with the Tribes Advisory Council for the State, make regulations for any scheduled area in the State with respect to any matter not provided for by any law for the time being in force in such area.

(3) The Governor may also make regulations for any scheduled area in the State with respect to the trial of cases relating to offences other than those which are punishable with death, transportation for life or imprisonment for five years or upwards or relating to disputes other than those arising out of any such laws as may be defined in such regulations, and may by such regulations empower the headmen or panchayats in any such area to try such cases.

(4) Any regulations made under this paragraph when promulgated by the Governor shall have the same force and effect as any Act of the appropriate Legislature which applies to such area and has been enacted by virtue of the powers conferred on that Legislature by this Constitution.

6. Alienation and allotment of lands to non-tribals in scheduled areas: (1) It shall not be lawful for a member of the Scheduled Tribes to transfer any land in a scheduled area to any person who is not a member of the Scheduled Tribes;

(2) No land in a scheduled area vested in the State within which such area is situate shall be allotted to, or settled with, any person who is not a member of the Scheduled Tribes except in accordance with rules made in that behalf by the Governor in consultation with the Tribes Advisory Council for the State

7. Regulation of money-lending in scheduled areas: The Governor may, and if so advised by the Tribes Advisory Council for the State shall, by public notification direct that no person shall carry on business as a money-lender in a scheduled area in the State except under or in accordance with the conditions of a licence issued by an officer authorised in this behalf by the Government of the State and every such direction shall provide that a breach of it shall be an offence, and shall specify the penalty with which it shall be punishable.

8. Estimated receipts and expenditure pertaining to scheduled areas to be shown separately in the annual financial statement: The estimated receipts and expenditure pertaining to a scheduled area in a State which are to be credited to, or is to be met from, the revenues of the State shall be shown separately in the annual financial statement of the State to be laid before the Legislature of the State under article 177 of this Constitution.

9. Application of Part Il to areas other than scheduled areas: (1) The Governor may, at any time by public notification, direct that all or any of the provisions of this Part shall on and from such date as may be specified in the notification apply lin relation to any area in the State inhabited by members of any Scheduled Tribe other than a scheduled area as they apply in relation to a scheduled arca in the State, and the publication of such notification shall be conclusive evidence that such brovisions have been duly applied in relation to such other area.

(2) The Governor may by a like notification direct that all or any of the provisions of this Part shall on and from such date as may be specified in the notification cease to apply in relation to any area in the State in respect of which a notification may have been issued under sub-paragraph (1) of this paragraph.

Article 244 (1), Constitution of India 1950

Part B

Administration and control of Scheduled Areas and Scheduled Tribes

4. Tribes Advisory Council.—(1) There shall be established in each State having Scheduled Areas therein and, if the President so directs, also in any State having Scheduled Tribes but not Scheduled Areas therein, a Tribes Advisory Council consisting of not more than twenty members of whom, as nearly as may be, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State:

⁠Provided that if the number of representatives of the Scheduled Tribes in the Legislative Assembly of the State is less than the number of seats in the Tribes Advisory Council to be filled by such representatives, the remaining seats shall be filled by other members of those tribes.

⁠(2) It shall be the duty of the Tribes Advisory Council to advise on such

matters pertaining to the welfare and advancement of the Scheduled Tribes in the State as may be referred to them by the Governor or Rajpramukh, as the case may be.

⁠(3) The Governor or Rajpramukh may make rules prescribing or regulating, as the case may be,—

(a) the number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof;
(b) the conduct of its meetings and its procedure in general; and
(c) all other incidental matters.

5. Law applicable to Scheduled Areas.—(1) Notwithstanding anything in this Constitution, the Governor or Rajpramukh, as the case may be, may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect.

⁠(2) The Governor or Rajpramukh, as the case may be, 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—

(a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;
(b) regulate the allotment of land to members of the Scheduled Tribes in such area;
(c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area.

⁠(3) In making any such regulation as is referred to in sub-paragraph (2) of this paragraph, the Governor or Rajpramukh may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question.

⁠(4) All regulations made under this paragraph shall be submitted forthwith to the President and, until assented to by him, shall have no effect.

(5) No regulation shall be made under this paragraph unless the Governor or the Rajpramukh making the regulation has, in the case where there is a Tribes Advisory Council for the State, consulted such Council.

The Fifth Schedule (Fifth Schedule of the Constitution of India, 1950) of the Draft Constitution of 1948 was discussed in the Constituent Assembly on 5 September 1949. It dealt with the administration and control of the Scheduled Areas and Scheduled Tribes in any State mentioned in Part I of the First Schedule.

The Drafting Committee Chairman began the proceedings with an amendment to the Schedule and provided detailed reasons for the changes made. First, it was no longer required for every State to have a Tribes Advisory Council. The Committee felt that States which did not have a Scheduled Area should not be obliged to form an Advisory Council—this could be left to the discretion of the President. Second, the Governor of a State would no longer be bound by the advice of the Council in determining the applicability of a law made by Parliament or State Legislature to the Scheduled Area. Third, since the scheduled areas in all States were not yet fully demarcated, the Chairman argued that it would be better to leave it to the President to identify these areas rather than have a separate part in the Draft Schedule listing the Scheduled Areas. Fourth, a new provision giving the Parliament the power to amend the Schedule was introduced. The Chairman made the case that with time, circumstances could change and it should be open to Parliament to make appropriate changes to the Schedule.

Some members were unhappy that the ‘Scheduled Tribes’ were left out from some parts of the Schedule. A member argued that since it was unclear how the scheduled areas would be demarcated; It was possible that there could be States with no Schedule Areas but with a Scheduled Tribe population. Hence, it was important that all provisions that apply to Scheduled Areas also specifically apply to Scheduled Tribes irrespective of whether they are in a Scheduled Area or not. The member was also extremely disappointed that the Chairman’s amendment made the Tribes Advisory Council subservient to the Governor of the State. He found it unacceptable that the Council will no longer have an effective and real say in the Administration of the Scheduled Areas and Scheduled Tribes. He also argued that the Translation Committee should not translate the term ‘Scheduled Tribes’ as ‘Banjati’, but use the term ‘Adibasi’. This would be in accordance with the term used by the people of these groups for themselves.

One member wanted the primary responsibility of the welfare and administration of the Scheduled Areas and Scheduled Tribes to lie with the Union Government and Parliament rather than the Governor. Another member largely accepted the Chairman’s amendment but pushed for making all tribal areas into Centrally administered areas. He felt that the provinces were not economically strong enough to take care of the needs of the Tribal population and hence, it would be better for the Centre to take control of these regions. Some members were wary of creating separate Scheduled Areas and Tribes Councils, suggesting that this could trigger separatist tendencies within the population.

A Drafting Committee member came to the defence of the revised Draft Schedule. He explained that the old Draft was found to be unsatisfactory for 2 reasons. The first reason was that the old schedule suggested a uniform scheme for the whole country even though the problem of the Scheduled tribes differed between the States or regions. The second reason was that the old draft was only meant for States which were previously Provinces and the revised Draft would now also extend the provisions of the schedule to the Princely States.

Despite several amendments being moved by the Assembly members, the Fifth Schedule as moved by the Drafting Committee Chairman was adopted as part of the Constitution on 5 September 1949.