Date : 11/10/2023

Relevance: GS Paper 2 - Polity- Scheduled Areas Governance

Keywords: Tribal Areas, Scheduled Areas, Bhuria Committee (1995), PESA Act, FRA Act

Context-

• India's Scheduled Tribe (ST) communities constitute 8.6% of the country's population, residing in 26 States and six Union Territories.
• Scheduled Areas are a crucial aspect of India's governance framework, primarily governed by Article 244 of the Constitution. While the Fifth Schedule applies to Scheduled Areas in various states (excluding Assam, Meghalaya, Tripura, and Mizoram), the Sixth Schedule is applicable to these excluded states.

What are Scheduled Areas?

• Scheduled Areas, which currently encompass 11.3% of India's total land area, have been officially designated in 10 states: Andhra Pradesh, Telangana, Odisha, Jharkhand, Chhattisgarh, Madhya Pradesh, Rajasthan, Gujarat, Maharashtra, and Himachal Pradesh. Additionally, in 2015, Kerala put forth a proposal to designate 2,133 habitations, five-gram panchayats, and two wards in five districts as Scheduled Areas, pending approval from the Indian government.
• However, despite persistent calls from Adivasi organizations, many villages in the 10 states with Scheduled Areas and in other states with significant ST populations have been excluded from this status. Consequently, a substantial 59% of India's STs do not fall under the purview of Article 244, depriving them of the rights and protections provided by laws applicable to Scheduled Areas. These laws include the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013 and the Biological Diversity Act of 2002.
• In 1995, the Bhuria Committee was established with the objective of proposing measures for extending the panchayat raj (local self-government) system to Scheduled Areas. The committee recommended the inclusion of these excluded villages into Scheduled Areas, but this recommendation has not been implemented to date. The rationale often cited for this omission is the absence of viable administrative units with a majority ST population, which has been a standard bureaucratic response. This argument has also been used to advocate for the denotification of parts of Scheduled Areas where STs have become a minority due to the influx of non-tribal individuals.

Identifying Scheduled Areas:

• The Fifth Schedule gives the President the exclusive power to declare an area as a Scheduled Area.
• The criteria for identifying Scheduled Areas are based on the 1961 Dhebar Commission Report. The criteria for designating an area as a Scheduled Area include

1. Preponderance of tribal population. which should not be less than 50 percent.
2. Compactness and reasonable size.
3. Viability as an administrative entity (district, block, or taluk).
4. Economic backwardness compared to neighboring areas.

• There is no specific law mandating a minimum ST population percentage or a cut-off date for identification, although a 2002 commission recommended areas with 40% or more tribal population.
• PESA defined a 'village' as a habitation or group of habitations with a community managing its affairs. This definition also applies to the FRA Act, expanding beyond Scheduled Areas to include forest fringes and villages.
• Demarcating customary boundaries on revenue lands and forest lands remains a challenge, as suitable laws are lacking.

Challenges in Identifying Scheduled Areas:

• Despite persistent demands by Adivasi organizations, many villages with ST populations remain outside the ambit of Article 244. Consequently, 59% of India's STs do not benefit from laws applicable to Scheduled Areas. These exclusions extend to critical legislations like the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and the Biological Diversity Act, 2002.
• The Bhuria Committee Recommendations (1995): The Bhuria Committee, established to suggest provisions for extending panchayat raj (local self-governance) to Scheduled Areas, recommended the inclusion of these excluded villages. However, this recommendation is yet to be implemented. The absence of viable ST-majority administrative units has led to calls for the denotification of parts of Scheduled Areas where STs have become a minority due to the influx of non-tribal individuals.

To address the issues:

• Habitats in States and Union Territories with ST majorities should be designated as Scheduled Areas, irrespective of contiguity.
• Extend geographical boundaries to include 'community forest resource' areas where applicable, and define customary boundaries within revenue lands through legal amendments.
• Redraw geographical limits of revenue villages, panchayats, talukas, and districts to fully encompass Scheduled Areas.

Governance of Scheduled Areas:

• The President of India designates Scheduled Areas. States with Scheduled Areas must constitute a Tribal Advisory Council comprising up to 20 ST members to advise the Governor on ST welfare. The Governor submits an annual report to the President regarding the administration of Scheduled Areas.

• The national government can issue directives to the State concerning the administration of Scheduled Areas. The Governor can repeal or amend any law enacted by Parliament and the State Legislative Assembly within the Scheduled Area. The Governor also has the authority to make regulations specific to a Scheduled Area, especially regarding the transfer of tribal land and the allotment of land and money-lending to STs.
• The Role of Panchayats (Extension to Scheduled Areas) Act (PESA) - 1996: PESA, enacted in 1996, played a pivotal role in implementing the intent of the Constitution. It empowered gram sabhas (village assemblies) to exercise substantial authority through direct democracy. According to PESA, structures at higher levels should not assume the powers and authority of the gram sabha.

Several issues surround the Fifth Schedule:

1. Limited Powers of Tribes Advisory Councils (TAC): TACs do not wield as much authority as Autonomous District Councils, as stipulated by the Sixth Schedule.
2. Unclear Composition of TAC: The composition of TACs lacks clarity, particularly regarding the remaining one-fourth of its membership.
3. Governor's Discretionary Power: There is ambiguity concerning the Governor's discretionary powers outlined in the Fifth Schedule. It's unclear whether the Governor can make decisions independently or only upon the advice of the Council of Ministers.
4. Inadequate Protection against Land Encroachment: The Fifth Schedule does not offer sufficient safeguards against the encroachment of tribal lands by non-tribal individuals or entities.
5. Regulations Framed by State Governments: On occasion, regulations governing the functions of TACs are devised by State governments rather than the Governor, allowing the political parties in power to assert control over these bodies.

Key Recommendations for Enhancing the Fifth Schedule:

1. Strengthen Institutions: Improve the effectiveness of bodies like Tribes Advisory Councils.
2. Inclusive Development: Ensure development in Scheduled Areas is inclusive and addresses tribal communities' specific needs.
3. Social Welfare: Implement targeted social protection and welfare measures for vulnerable populations.
4. Resource Allocation: Provide adequate resources for local infrastructure, education, healthcare, and basic amenities.
5. Capacity Building: Offer training and education for ST community members for active participation.
6. Devolve Powers: Promote tribal self-governance by granting local councils decision-making authority.
7. Change Attitudes: Encourage a shift in government attitudes towards Scheduled Areas' development and welfare.

Conclusion:

Scheduled Areas in India represent a critical constitutional provision for safeguarding the rights and welfare of Scheduled Tribes. While challenges persist in identifying and extending these areas, the PESA Act has significantly empowered local governance through gram sabhas. To ensure comprehensive coverage and effectiveness, it is crucial to include all habitations with ST populations, extend their geographical limits, and redraw administrative boundaries to fully integrate them into Scheduled Areas.

Source- The Indian Express