Part C: Scheduled Areas

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

Part III

Provisions as to the State of the United Provinces

10. Application of Part III: The provisions of this Part shall apply only to the State of the United Provinces.

11. Scheduled Areas Advisory Committee: (1) As soon as may be after the commencement of this Constitution the Governor shall by order appoint for the State a Scheduled Areas Advisory Committee, two-thirds of the members of which shall be the members of the Scheduled Tribes. Such order may define the composition, powers and procedure of the committee and may contain such incidental or ancillary provisions as the Governor may consider necessary or desirable.

(2) It shall be the duty of the Scheduled Areas Advisory Committee generally to advise the Government of the State on all matters pertaining to the development of scheduled areas in the State.

12. Power of Governor to make regulations in certain cases: (1) The Governor may 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 for the trial of such classes of suits or cases of small pecuniary value as may be specified in such regulations, and may also by such regulations empower the headmen or panchayats in any such area to try such cases or suits.

(2) The Governor may also make regulations so as to prohibit the transfer of any land in a scheduled area in the State by a member of the Scheduled Tribes to any person who is not a member of the Scheduled Tribes.

(3) 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.

13. Estimated receipts and expenditure pertaining to scheduled areas to be shown separately in the Annual Financial Statement: The estimated receipts and expenditure pertaining to the scheduled areas in the 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.

Part V

Scheduled Areas

18. * Scheduled areas: (1) The areas specified in Parts I to VII of the table below shall be the scheduled areas within the meaning of this Constitution, and any reference in the said table to any division, district, administrative area, tahsil or estate shall be construed as a reference to that division, district, area, tahsil or estate as existing on the date of commencement of this Constitution,

(2) 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

(b) alter, but only by way of rectification of boundaries, any scheduled area;

(c) on any alteration of the boundaries of a State for the time being specified in Part 1 of the First Schedule or on the inclusion in Part I of that Schedule of a new State admitted into the Union or established by Parliament by law, declare any territory not previously included in any State so specified to be, or to form part of, a scheduled area;

and any such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper.

*The committee is of opinion that a provision on the lines of section 91(2) of the Government of India Act, 1935, as originally enacted, should be included in this paragraph to enable any area to be excluded from or included in the scheduled areas and the committee has accordingly added sub-paragraph (2) to this paragraph.

Article 244 (1), Constitution of India 1950

PART C

Scheduled Areas

6. Scheduled Areas.—(1) In this Constitution, the expression “Scheduled Areas” means such areas as the President may by order declare to be Scheduled Areas.

⁠(2) 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;

(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;

and any such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper, but save as aforesaid, the order made under sub-paragraph (1) of this paragraph shall not be varied by any subsequent order.

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.