MPSC 2023 Prelims Paper-I · Question 81 of 100

Correct — option (4). The answer is written into the Fifth Schedule itself. Paragraph 7 of that Schedule, headed 'Amendment of the Schedule', reads: 'Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such Schedule as so amended.' Sub-paragraph (2) then closes the question completely: 'No such law as is mentioned in sub-paragraph (1) of this paragraph shall be deemed to be an amendment of this Constitution for the purposes of article 368.' Two things follow, and together they give option (4). First, the power to alter these provisions belongs to Parliament and to nobody else — not to the Governor, who administers Scheduled Areas, and not to the President, who declares them. Second, because such a law is expressly declared not to be an amendment of the Constitution for the purposes of Article 368, Parliament does not need the special majority and the amendment procedure of that article; it legislates in the ordinary way, by a simple majority of the members present and voting in each House. That is exactly what 'ordinary legislation' means, and it is what separates option (4) from option (3). The design is deliberate rather than accidental. The Fifth Schedule is an instrument of administration for Scheduled Areas and Scheduled Tribes, and its detailed machinery — the Tribes Advisory Council, the Governor's power to modify the application of laws, the manner of declaring Scheduled Areas — was expected to need adjustment as conditions in those areas changed. Locking it behind the Article 368 procedure would have made routine administrative repair as difficult as amending a fundamental right. The Constitution therefore uses a device it employs in a small number of other places as well, of allowing Parliament to alter a part of the Constitution by ordinary law while declaring that the alteration is not an amendment for Article 368. Paragraph 21 of the Sixth Schedule carries word-for-word the same provision for the tribal areas of Assam, Meghalaya, Tripura and Mizoram. Option (4) is therefore the answer.

• (1)may be altered by the Governor — The Governor is the central figure in the day-to-day working of the Fifth Schedule, which is precisely why this option is tempting, but none of the Governor's powers touches the Schedule's own text. Under paragraph 3 the Governor of every State having Scheduled Areas reports to the President annually, or whenever the President requires, on the administration of those areas. Under paragraph 4 the Governor refers matters to the Tribes Advisory Council and makes rules for its conduct of business. Under paragraph 5 the Governor may direct by public notification that a particular Act of Parliament or of the State Legislature shall not apply to a Scheduled Area, or shall apply subject to exceptions and modifications, and may make regulations for the peace and good government of the area, including regulations prohibiting or restricting the transfer of land by or among Scheduled Tribes and regulating money-lending. Every one of these is a power over how law operates inside a Scheduled Area. Altering the provisions of the Schedule is a different act altogether, and paragraph 7 reserves it to Parliament.
• (2)may be altered by the President — The President's role under the Fifth Schedule is real but equally distinct from amending it. Paragraph 6 provides that 'Scheduled Areas' means such areas as the President may by order declare to be Scheduled Areas, and empowers the President to increase the area of a Scheduled Area, to alter it, to rescind an order and make a fresh one after consultation with the Governor, and to make consequential amendments to such orders. Paragraph 4(1) additionally lets the President direct that a Tribes Advisory Council be established in a State that has Scheduled Tribes but no Scheduled Areas. So the President decides where the Schedule applies, and receives the Governor's report on how it is working; but the content of the Schedule is not the President's to change. A candidate who remembers only that 'the President declares Scheduled Areas' can land on this option by association. The discrimination to hold is between declaring the territory the Schedule covers and rewriting the Schedule's provisions.
• (3)may be altered by the Parliament by Constitutional Amendment requiring special majority — This is the intended trap and the option most candidates lose the mark to, because the reasoning behind it is sound in general and wrong here. A Schedule is part of the Constitution; changing part of the Constitution ordinarily requires the procedure of Article 368, which needs a majority of the total membership of each House and a majority of not less than two-thirds of the members present and voting. Paragraph 7(2) of the Fifth Schedule displaces that general rule for this Schedule by declaring that a law amending it 'shall not be deemed to be an amendment of this Constitution for the purposes of article 368'. The Constitution uses the same device elsewhere: Article 4 says that a law under Articles 2 and 3 altering the First and Fourth Schedules is not an amendment for Article 368; Article 169 says the same of a law abolishing or creating a State Legislative Council; and paragraph 21 of the Sixth Schedule repeats the Fifth Schedule's formula. Learning that short list is the reliable way to answer this family of questions, because every one of them is asked to see whether the candidate applies the general rule where an express exception governs.

The Fifth Schedule, given effect by Article 244(1), carries the 'Provisions as to the Administration and Control of Scheduled Areas and Scheduled Tribes' in every State except Assam, Meghalaya, Tripura and Mizoram, which are dealt with by the Sixth Schedule instead. Its machinery is supervisory rather than devolutionary. The executive power of the Union extends to giving a State directions on the administration of its Scheduled Areas, and the Governor reports to the President on that administration. A Tribes Advisory Council of not more than twenty members, of whom as nearly as may be three-fourths are the Scheduled Tribe members of the State Legislative Assembly, advises on matters referred to it. The Governor may switch off or modify the application of any Act in a Scheduled Area and may make regulations for its peace and good government, notably on the transfer of tribal land and on money-lending. The President declares which areas are Scheduled Areas and may alter or rescind such a declaration. Sitting above all this is paragraph 7, the amendment clause, which allows Parliament to change the Schedule by ordinary law and declares that such a law is not a constitutional amendment for Article 368. This makes the Fifth Schedule a flexible part of an otherwise rigid document — a fact easily missed by a candidate who has learnt the Schedule's contents without reading its last paragraph.

MPSC returns to the Fifth Schedule repeatedly, and there is a reason beyond general polity. Maharashtra has Scheduled Areas of its own, in the districts of the Sahyadri and of Vidarbha where Scheduled Tribes are concentrated, and the Panchayats (Extension to the Scheduled Areas) Act of 1996 — which extends the panchayat provisions of Part IX to precisely these areas — applies in the State. So the Schedule is live administrative law for a Maharashtra officer, not a textbook curiosity. The habit this particular question rewards is reading a constitutional provision to its end. Almost every candidate can recite the Governor's and the President's powers under the Schedule; far fewer have read paragraph 7, which is where this question lives. The second habit is resisting a plausible generalisation. 'Any change to the Constitution needs Article 368' is true as a default and false in the handful of places where the Constitution says otherwise, and an examiner who wants to separate genuine reading from received wisdom will build a question on exactly one of those places. Note also how the item is printed: the stem is a sentence fragment with no question mark, and each of the four numbered options completes it. That layout is normal in this paper and carries no hidden meaning — read the stem and the option together as one sentence and answer the sentence.

• Paragraph 7(1) of the Fifth Schedule empowers Parliament to amend the Schedule by law, by way of addition, variation or repeal of any of its provisions, and paragraph 7(2) declares that such a law is not an amendment of the Constitution for the purposes of Article 368.
• Because Article 368 does not apply, the amending law is passed as ordinary legislation by a simple majority of the members present and voting in each House, and not by the special majority Article 368 requires.
• The Fifth Schedule is applied by Article 244(1) to Scheduled Areas and Scheduled Tribes in States other than Assam, Meghalaya, Tripura and Mizoram, which are governed instead by the Sixth Schedule under Article 244(2).
• The Governor's Fifth Schedule powers concern the operation of law inside Scheduled Areas — reporting to the President, referring matters to the Tribes Advisory Council, excluding or modifying the application of Acts, and making regulations on tribal land transfer and money-lending.
• The President's Fifth Schedule powers concern the territory it applies to — declaring, increasing, altering or rescinding Scheduled Areas under paragraph 6, and directing a Tribes Advisory Council where a State has Scheduled Tribes but no Scheduled Areas.

• Assuming that anything forming part of the Constitution can only be changed under Article 368, when paragraph 7(2) of the Fifth Schedule expressly says the opposite
• Confusing the Governor's power to modify how laws apply inside a Scheduled Area with a power to alter the Schedule itself, which belongs only to Parliament
• Confusing the President's power to declare and alter Scheduled Areas under paragraph 6 with a power over the Schedule's text
• Mixing up the Fifth and Sixth Schedules, which cover mutually exclusive sets of States and rest on different administrative philosophies

The Fifth Schedule reaches MPSC papers in four recurring shapes: which Schedule covers Scheduled Areas as against tribal areas, who declares a Scheduled Area, what the Tribes Advisory Council is and how it is composed, and — as here — who may alter the Schedule and by what procedure. The last of these is the sharpest, because it can only be answered by someone who has read paragraph 7 rather than a summary of the Schedule. The same amendment-by-ordinary-law point is examined through its siblings as well, so a question may equally be built on Article 4, on Article 169 or on paragraph 21 of the Sixth Schedule; preparing them as one short list rather than as four separate facts covers every version. Expect the wrong options to name the Governor and the President, since both hold genuine powers under the Schedule, and expect at least one option to invoke the special majority, because that is what an unprepared candidate will reason towards.

No directly related past PYQ was found.

• practice — not a real PYQ

  A law made by Parliament amending the Fifth Schedule of the Constitution is passed by which procedure ?

  • (a)By ordinary legislation, and it is not deemed an amendment of the Constitution
  • (b)By the special majority prescribed under Article 368
  • (c)By the special majority under Article 368 together with ratification by half the States
  • (d)By a resolution of the Rajya Sabha supported by two-thirds of the members present and voting

  Answer(a) By ordinary legislation, and it is not deemed an amendment of the Constitution — paragraph 7(1) of the Fifth Schedule lets Parliament amend the Schedule by way of addition, variation or repeal, and paragraph 7(2) declares that such a law is not an amendment of the Constitution for the purposes of Article 368. Ratification by the States, named in the third option, is required only for the entrenched matters listed in the proviso to Article 368(2), and none of them is in point here.

• practice — not a real PYQ

  Which of the following provisions can be altered by Parliament by ordinary law without attracting Article 368 ?

  • (a)The Fundamental Rights in Part III
  • (b)The Fifth Schedule and the Sixth Schedule
  • (c)The distribution of legislative powers in the Seventh Schedule
  • (d)The powers of the Supreme Court under Article 32

  Answer(b) The Fifth Schedule and the Sixth Schedule — paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth carry the same clause, allowing Parliament to amend them by law while declaring that the law is not an amendment of the Constitution for the purposes of Article 368. The Seventh Schedule is different: altering the legislative lists is a genuine constitutional amendment and, because it affects the distribution of powers between the Union and the States, it also needs ratification by the legislatures of not less than one-half of the States.