Fifth and Sixth schedule of Constitution of India : A comparative analysis
- Part 2 -

Dr Th Siamkhum *

5. Laws applicable to Scheduled Areas

i) Notwithstanding anything in this Constitution, the Governor may, by public notification, direct that any particular Act of Parliament or of the State Legislature shall not apply to the Scheduled Areas or any part thereof in the State or shall apply to the Scheduled Areas or any part thereof in the State, subject to such modifications as he may specify in the notifications and any direction given under this paragraph may be given so as to have retrospective effect.

a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;

b) regulate the allotment of land to members of Scheduled Tribes in such area;

c) regulate the carrying on of business as money lenders by person who lend money to members of Scheduled Tribes in such area.

ii) In making such regulation as is referred to in sub-paragraph (ii) of this paragraph, the Governor may repeal or amend any Act of Parliament or State Legislature or any existing law which is for the time being applicable to the area in question.

iii) All regulations made under this paragraph shall be submitted forthwith to the President and, until assented to by him will have no effect.

iv) No regulation shall be made under the paragraph unless the Governor, making the regulation has, in the case where there is a Tribe Advisory Council for the State consulted such Council.

IV. Observation

Part B of the Fifth Schedule of the Constitution deals with the administration and control of Scheduled Areas and Scheduled Tribes, which provides for the establishment of Tribes Advisory Council. This provision clearly stated that any state having Scheduled Areas has the constitutional obligation to create Tribes Advisory Council, which shall function as an advisory body to give advice to the State Government on matters relating to the welfare and advancement of Scheduled Tribes living in the Scheduled Areas of the State.

However, no legislative power or law making power was given to the Council. Even on matter in which it was given the power to give advice to the Governor, the matter required to be referred to the Council by the Governor.With the exception of transfer of land, the Council is left with no power that it could exercise on its own.

The Fifth Schedule of the Constitution of India, as seen above, was created so as to pave the way for the creation of administrative institution, whether be it in the form of Tribes Advisory Council or Autonomous District Council, for the administration of Scheduled Areas and Scheduled Tribes in different parts of the country. In the North-East, Assam, Meghalaya, Mizoram and Tripura are excluded from the purview of Fifth Schedule as these States are included within the scheme of Sixth Schedule.

On the other hand, Manipur, Nagaland and Arunachal Pradesh, though not specifically mentioned in the provision of the Fifth Schedule are, deemed to have been included under the purview of the Fifth Schedule as it was provided in the Scheduled that each state having Scheduled areas therein and, if the President so direct, also in any state having Scheduled Tribes, but not Scheduled Area (Part B4 of the Fifth Scheduled) Manipur along with the above mentioned North-eastern States are deemed to have been included under the scheme of Fifth Schedule as the word ‘each state’ could be interpreted as all States.

District Councils established in the Hill Areas of Manipur by an Act of Parliament in 1971, though not specifically mentioned in the Act, are created under the provision of the Schedule of the Constitution. The only difference lies in the name of the nomenclature i.e. while the Fifth Schedule has provided for the establishment of Tribes Advisory Council, in Manipur, the Act provided the nomenclature of Autonomous District Council.

V. Evolution of Sixth Schedule of the Constitution

The origin of the Sixth Schedule of the Constitution of India could be traced back to the Government of India Act, 1935, under which the hill areas of Assam were divided into Excluded Area, and partially Excluded Area. The Mizo Hills (Lushai Hills by then), the Naga Hills and the North-Cachar Hills were included in Excluded Area, while the Khasi and Jaintia Hills, the Garo Hills and Karbi-Anglong (Mikir Hills by then) were included in the Partially Excluded Area. The administrations of the Excluded Areas were enthrusted to specially appointed officials (Superintendent), who administered the people loosely through Village Chiefs.

The Village Chiefs administered each of their respective villages, with the least intervention of Superintendentswith absolute power. This was particularly true in the case of Lushai hills, where the Sailo Chiefs who administered their respective villages with almost an unrestraint powers. There was practically no platform for the people to participate in politics and administrations and, nor was there, anyplatform through which the people could air their grievances and aspirations.

However, after India attained independence in 1947; policy makers of the newly-born India, sought to develop these backward and primitive hill tribes, while at the same time, ensuring safe-guard of their distinct identitites and culture. It was, therefore, felt necessary to find out and introduce an administrative mechanism that would allow these hill tribes to have a sufficient political and administrative autonomy, which would ensure protection to their distinct culture, religious practices, language, etc.; while at the sametime, provides them opportunities to develop themselves educationally, economically etc.

The Constituent Assembly in 1946, set-up an Advisory Committee on Fundamental Rights of Minorities which constituted a Sub-Committee called, “The North-East Frontier Tribal and Excluded Areas Sub-Committee”. Under the Chairmanship of Gopinanth Bordoloi which is also referred to as Bordoloi Committee, to study and investigate into the problems of hill tribes living in the Excluded Area; and to give suggestions for the formulation of administrative mechanism for the administration of the people through which they could economically, politically and educationally develop themselves in a more speedy manner. The Bordoloi Committee, being tasked with the responsibility to study and investigate into the causes of backwardness in the area, visited and interacted with the people and their representatives.

To be continued..