Provisions of the Constitution relating to the administration of Scheduled Areas and Scheduled Tribes in Schedule – V

Question

UnlockIAS · Accepted Answer

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.

Why the other options are wrong — (a) 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.  (b) 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.  (c) 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.

Concept: 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.

State PCS 2023 Q81 — Polity & Governance PYQ with Answer

State PCS 2023 Q81 — Polity & Governance PYQ with Answer