The state of India’s Scheduled Areas

• India’s 705 Scheduled Tribe (ST) communities — making up 8.6% of the country’s population — live in 26 States and six Union Territories.
• Article 244, pertaining to the administration of Scheduled and Tribal Areas, is the single most important constitutional provision for STs.

What are Scheduled Areas

• Scheduled Areas cover 11.3% of India’s land area, and have been notified in 10 States
• Article 244(1) provides for the application of Fifth Schedule provisions to Scheduled Areas notified in any State other than Assam, Meghalaya, Tripura, and Mizoram.
• The Sixth Schedule applies to these States as per Article 244(2).
• However, despite persistent demands by Adivasi organizations, villages have been left out in the 10 States with Scheduled Areas and in other States with ST populations.
• As a result, 59% of India’s STs remain outside the purview of Article 244.
• They are denied rights under the laws applicable to Scheduled Areas, including the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 and the Biological Diversity Act 2002.
• In 1995, the Bhuria Committee, constituted to recommend provisions for the extension of panchayat raj to Scheduled Areas, recommended including these villages, but this is yet to be done.

How are Scheduled Areas governed?

• The President of India notifies India’s Scheduled Areas.
• States with Scheduled Areas need to constitute a Tribal Advisory Council with up to 20 ST members.
• They will advise the Governor on matters referred to them regarding ST welfare.
• The Governor will then submit a report every year to the President regarding the administration of Scheduled Areas.
• State panchayat laws had empowered the elected panchayat bodies, rendering the gram sabhas moot.
• PESA empowered the gram sabhas to exercise substantial authority through direct democracy, and stated that structures “at the higher level do not assume the powers and authority” of the gram sabha.

Who decides a Scheduled Area?

• The Fifth Schedule confers powers exclusively on the President to declare any area to be a Scheduled Area.
• In 2006, the Supreme Court held that “the identification of Scheduled Areas is an executive function” and that it doesn’t “possess the expertise … to scrutinize the empirical basis of the same”.

How are Scheduled Areas identified?

• Neither the Constitution nor any law provides any criteria to identify Scheduled Areas.
• However, based on the 1961 Dhebar Commission Report, the guiding norms for declaring an area as a Scheduled area are —
  • preponderance of tribal population;
  • compactness and reasonable size of the area;
  • a viable administrative entity such as a district, block or taluk;
  • and economic backwardness of the area relative to neighboring areas.
• No law prescribes the minimum percentage of STs in such an area nor a cut-off date for its identification.
• The Bhuria Committee recognised a face-to-face community, a hamlet or a group of hamlets managing its own affairs to be the basic unit of self-governance in Scheduled Areas.
• But it also noted that the most resource rich tribal-inhabited areas have been divided up by administrative boundaries, pushing them to the margins.
• Therefore, determining the unit of the area to be considered — whether a revenue village, panchayat, taluka or district, with an ST-majority population — gave way to arbitrary politico-administrative decisions.
• However, PESA’s enactment finally settled this ambiguity in law.
• The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, also known as the FRA Act, adopted this definition.
• Here, too, the gram sabhas are the statutory authority to govern the forests under their jurisdiction.
• As a result, the definition of a village expanded beyond the Scheduled Areas to include forest fringes and forest villages as well.
• FRA 2006 requires them to demarcate ‘community forest resource’, which is the “customary common forest land within the traditional or customary boundaries of the village

What next?

• All habitations or groups of habitations outside Scheduled Areas in all States and Union Territories where STs are the largest social group will need to be notified as Scheduled Areas irrespective of their contiguity.
• The geographical limit of these villages will need to be extended to the ‘community forest resource’ area on forest land under the FRA 2006
• the geographical limits of the revenue village, panchayat, taluka, and district will need to be redrawn so that these are fully Scheduled Areas.