SCHEDULED AREAS IN INDIA

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, about the administration of Scheduled and Tribal Areas, is the single most important constitutional provision for STs. 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).

• Scheduled Areas (SAs) in India cover 11.3% of the country's land area and are notified in 10 States: Andhra Pradesh, Telangana, Odisha, Jharkhand, Chhattisgarh, Madhya Pradesh, Rajasthan, Gujarat, Maharashtra, and Himachal Pradesh.
• In 2015, Kerala proposed to notify 2,133 habitations, five-gram panchayats, and two wards in five districts as SAs, but this proposal is awaiting the Indian government's approval.
• Despite persistent demands by Adivasi organizations, many villages in the 10 States with SAs and in other States with ST populations have been left out.
• As a result, 59% of India's STs remain outside the purview of Article 244 of the Constitution, which provides for the administration of SAs.
• This means that they are denied rights under the laws applicable to SAs, including the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 and the Biological Diversity Act 2002.

3. Bhuria Committee Recommendations

• In 1995, the Bhuria Committee, constituted to recommend provisions for the extension of panchayat raj to SAs, recommended including these villages in SAs, but this has not been done yet.
• The standard bureaucratic response to this has been that there are no viable ST-majority administrative units.
• This argument has also been used to demand the denotification of parts of SAs where STs are now a minority due to the influx of non-tribal individuals.

• 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 to advise the Governor on matters referred to them regarding ST welfare.
• The Governor submits a report every year to the President regarding the administration of Scheduled Areas.
• The national government can give directions to the State regarding the administration of Scheduled Areas.
• The Governor can repeal or amend any law enacted by Parliament and the State Legislative Assembly in its application to the Scheduled Area of that State.
• The Governor can also make regulations for a Scheduled Area, especially to prohibit or restrict the transfer of tribal land, regulate the allotment of land to STs, and regulate money-lending to STs.
• PESA empowers gram sabhas to exercise substantial authority through direct democracy and states that structures “at the higher level do not assume the powers and authority” of the gram sabha.

• The President of India has the exclusive power to declare any area to be a Scheduled Area. This power has been upheld by the Supreme Court of India.
• In 2006, the Supreme Court held that the identification of Scheduled Areas is an executive function and that it does not possess the expertise to scrutinise the empirical basis of the same.
• In 2016, the Jharkhand High Court dismissed a challenge to the notification of a Scheduled Area because the ST population there was less than 50% in some blocks.
• The court observed that the declaration of a Scheduled Area is "within the exclusive discretion of the President".

Neither the Constitution nor any law provides any criteria to identify Scheduled Areas.

Based on the 1961 Dhebar Commission Report, the guiding norms for declaring an area as a Scheduled area are:

1. Preponderance of tribal population
2. Compactness and reasonable size of the area
3. A viable administrative entity
4. Economic backwardness of the area relative to neighbouring 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.
• The Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) defined a ‘village’ as ordinarily consisting of “a habitation or a group of habitations, or a hamlet or a group of hamlets comprising a community and managing its affairs by traditions and customs”. All those “whose names are included in the electoral rolls” in such a village constituted the gram sabha.
• The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA Act) adopted PESA’s definition of a village. Here, too, the gram sabhas are the statutory authority to govern the forests under their jurisdiction.

• 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 where applicable, and to the customary boundary within revenue lands made possible through suitable amendments to the relevant State laws.
• The geographical limits of the revenue village, panchayat, taluka, and district will need to be redrawn so that these are fully Scheduled Areas.