Powers of the Governor with regard to Scheduled Tribes in the state

FIFTH SCHEDULE

[Article 244(1)] Provisions as to the Administration and Control of Scheduled Areas and
Scheduled Tribes

PART B

ADMINISTRATION AND CONTROL OF SCHEDULED AREAS AND SCHEDULED TRIBES

4. Tribes Advisory Council.-(1) There shall be established in each State having Scheduled
Areas therein and, if the President so directs, also in any State having Scheduled Tribes but
not Scheduled Areas therein, a Tribes Advisory Council consisting of not more than twenty
members of whom, as nearly as may be, three-fourths shall be the representatives of the
Scheduled Tribes in the Legislative Assembly of the State:

Provided that if the number of representatives of the Scheduled Tribes in the Legislative
Assembly of the State is less than the number of seats in the Tribes Advisory Council to be
filled by such representatives, the remaining seats shall be filled by other members of those
tribes.

(2)It shall be the duty of the Tribes Advisory Council to advise on such matters pertaining
to the welfare and advancement of the Scheduled Tribes in the State as may be referred to
them by the Governor * * *.1. (3) The Governor * * *.

2 may make rules prescribing or regulating, as the case may be,--

(a) The number of members of the Council, the mode of their appointment and the
appointment of the Chairman of the Council and of the officers and servants thereof,

(b) The conduct of its meetings and its procedure in general; and

(c) All other incidental matters.

5. Law applicable to Scheduled Areas.-(1) Notwithstanding anything in this Constitution

the Governor 1* * * may by public notification direct that any particular Act of Parliament
or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in
the State or shall apply to a Scheduled Area or any part thereof in the State subject to such
exceptions and modifications as he may specify in the notification and any direction given
under this subparagraph may be given so as to have retrospective effect.

(2) The Governor may make regulations for the peace and good government of any area in a
State which is for the time being a Scheduled Area. In particular and without prejudice to
the generality of the foregoing power, such regulations may- (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 the Scheduled Tribes in such area; (c)regulate the carrying
on of business as money-lender by persons who lend money to members of the Scheduled
Tribes in such area.

(3)In making any such regulation as is referred to in subparagraph (2) of this paragraph,
the Governor ***.3 may repeal or amend any Act of Parliament or of the Legislature of the
State or any existing law which is for the time being applicable to the area in question.

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

(5)No regulation shall be made under this paragraph unless the Governor ***.4 making the
regulation has, in the case where there is a Tribes Advisory Council for the State, consulted
such Council.

https://www.constitution.org/cons/india/shed05b.html

Scheduled and Tribal Areas in India

Article 244 deals with the administration of Scheduled areas and Tribal areas. The
provisions of the Fifth Schedule of the constitution apply to the administration and control
of the scheduled areas and scheduled tribes in any state other than the states of Assam,
Meghalaya, Tripura and Mizoram.

Article 244 deals with the administration of Scheduled areas and Tribal areas. The
provisions of the Fifth Schedule of the constitution apply to the administration and control
of the scheduled areas and scheduled tribes in any state other than the states of Assam,
Meghalaya, Tripura and Mizoram.

Administration of Scheduled Areas

The Features of the Fifth Schedule are Mentioned Below:

1. Declaration of Scheduled Areas: The constitution empowers the President to declare

any areas as scheduled area. The president can increase or decrease its area or alter its
boundaries. He can cancel such designation after consultation with the governor or can
make fresh orders redefining the schedule areas.
2. Executive Power of State and Centre: Subject to the provisions of this schedule, the
executive power of a state extends to the scheduled areas therein. The governor of each
state having scheduled areas annually, or whenever required by the president, make a
report to the president regarding the administration of the scheduled areas in that state.
The executive power of the union extends to the giving of directions to the state as to the
administration of such areas.

3. Tribes Advisory Council: Each state having scheduled areas needs to establish tribes
advisory council consisting of not more than twenty members of whom about three-fourth
members should be the representatives of the scheduled tribes in the legislative assembly
of the state.

4. Law Applicable to Scheduled Areas: The governor is empowered to direct that any
particular act of parliament or of the legislature of the state does not apply to a scheduled
area subject to such exceptions and modifications as he may specify in the notification.

(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 the scheduled tribes in such area;

(c) Regulate the carrying on of business as money-lender by persons who lend money to
members of the scheduled tribes in such area.

In doing so, he may repeal or amend any act of parliament or the state legislature or any
existing law which is for the time being applicable to such area. All the above regulation
requires the assent of the president.

Tribal Areas

The Sixth Schedule deals with the administration and control of the tribal areas in the
states of Assam, Meghalaya, Tripura and Mizoram.
Administration of Tribal Areas

The Sixth Schedule of the constitution provides special provisions for the administration of
the tribal areas in Assam, Meghalaya, Tripura and Mizoram. The provisions of the schedule
are as follows:

1. It provides for autonomous districts and autonomous regions.

2. The governor can increase, decrease, re-organise or alter the boundary of these districts.

3. If there are different scheduled tribes in an autonomous district, the governor may divide
the area or areas inhabited by them into autonomous regions.

4. Each autonomous district has a district council consisting of not more than thirty
members, of whom not more than four persons shall be nominated by the governor and the
rest shall be elected on the basis of adult suffrage. The elected members of the district
council hold office for a term of five years and nominated member hold office at the
pleasure of the governor.

5. The district and the regional councils can make laws on matters such as land, forests,
canal water, Jhum cultivation, local administration, the inheritance of property etc.

6. The district and the regional councils may constitute village councils or courts for the
trial of suits and cases between the parties all of whom belong to Scheduled Tribes within
such areas.

7. The district council can establish, construct, or manage primary schools, dispensaries,
markets, ferries, fisheries, roads, road transport and waterways in the district.

8. A district fund for each autonomous district and a regional fund for each autonomous
region is constituted to which money received respectively by the district council

9. The district and the regional councils have powers to assess and collect land revenue and
to impose certain taxes.
10. The district council is empowered to make regulations for the Control of money-lending
and trading by non-tribals.

11. Estimated receipts and expenditure pertaining to autonomous districts has to be shown
separately in the annual financial statement of the state.

12. An act of parliament or of the legislature of the state does not apply to autonomous
districts and autonomous regions or apply with specified exceptions and modifications.

13. If at any time the Governor is satisfied that an act or resolution of a district or a regional
council is likely to endanger the safety of India he may suspend such an act or resolution
and take such steps.

14. The governor can appoint a commission to look into and report on the matters related
to the administration of the autonomous districts or regions.

https://www.jagranjosh.com/general-knowledge/scheduled-and-tribal-areas-in-india-
1438317139-1

Centre reverses stand on governor's powers under Fifth Schedule

The Centre seems to have reversed its stand on the powers of a governor over
administering tribal areas in a state. Earlier, the attorney general of India had given an
opinion to the home ministry, in response to a reference, that governors do have
discretionary powers, but an assistant solicitor general has said exactly the opposite. Fauzia
Mirza has said that the governor has no discretionary powers under the Fifth Schedule of
the Constitution of India in a submission filed in the Chhattisgarh High Court on behalf of
the Centre. The Fifth Schedule is rooted in Article 244 (1) and deals with administration
and control of Scheduled Areas and Scheduled Tribes.

Mirza filed the submission in February end in connection with an ongoing case that has
virtually challenged the Fifth Schedule and validity of the Tribes Advisory Council (TAC).
“The governor has granted powers to the chairpersons as per the rules of TAC,” the
assistant solicitor general stated. “It cannot be said that these rules have been formulated to
exercise the governor’s discretionary powers. While framing these rules, the power of
governor has been exercised as the Constitutional head of the state acting with the aid and
advice of the council of ministers and not in his discretion,” the document says.
The statement contradicts the opinion expressed by attorney general G E Vahanvati on
April 21, 2010. Vahanvati, in his opinion on the nature of powers of the governor under the
Fifth Schedule, had stated that the governor does have discretionary powers and had based
his opinion on nine judgements of the Supreme Court and other references.

The division bench of Chief Justice Yatindra Singh and Justice Pritinkar Diwakar granted
two weeks to the advocate general to file a reply. The next hearing is on March 12.

Fifth Schedule and its implementation in practice

The public interest petition filed last year in the Chhattisgarh High Court virtually questions
the Fifth Schedule. The petition says it was impractical to implement the Fifth Schedule in
its present form because of its flawed nature. While it was the root cause of the tribals’
plight, the functioning of TAC is also questionable, it said. According to the petitioner, if
governors exercise their near extra-constitutional powers, they would be in direct
confrontation with state executive heads.

According to the petition, paragraph 4(2) of the Fifth Schedule stipulates that TAC should
hold deliberations in such a manner that the governor refers to them. “In reality, the chief
minister, who is also the chairperson of TAC, decides the agenda and seizes sole control
over the functioning of the body without taking any reference from the governor,” the
petition states.

“Governors never exercise their power entrusted in the Fifth Schedule,” says BK Manish, the
petitioner who is a tribal rights activist. He cited two recent incidents—Nagari movement
of Jharkhand and illegal detention of thousands of tribals in the name of Maoist movement
in Chhattisgarh. In Nagari, Adivasis approached the governor to annul a project to establish
a centre of the Indian Institute of Management by the forcible acquisition of fertile land. The
governor ignored their demand. In Chhattisgarh, the governor turned a deaf ear to tribals’
appeals to annul the draconian Chhattisgarh Special Public Security Act.
https://www.downtoearth.org.in/news/centre-reverses-stand-on-governors-powers-
under-fifth-schedule--40444