Scheduled and Tribal Areas

India's tribal communities have their own land, customs and ways of self-government. Ordinary laws can disturb them. The Constitution therefore gives certain areas a special administrative status under Article 244, through two schedules: the Fifth Schedule and the Sixth Schedule. Both exist for one purpose: to protect the interests of the Scheduled Tribes. The difference is one of degree. The Fifth Schedule is protective administration by the Governor and the Union. The Sixth Schedule grants genuine self-rule through elected councils.

The Fifth Schedule covers the scheduled areas and scheduled tribes in states other than the four north-eastern states named in the Sixth Schedule. The power to declare any area a "Scheduled Area" rests with the President (Fifth Schedule, paras 6–7). This power is exercised through the Scheduled Areas Order, 1950. It currently covers around ten states, including Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan. A Scheduled Area has no single fixed size. The largest unit that can form a Scheduled Area is a whole district. The smallest unit is a block, or a cluster of villages within a block.

• The Governor has special powers (Fifth Schedule, para 5). The Governor can direct that a law of Parliament or the state legislature shall not apply to a scheduled area, or shall apply only with exceptions or modifications, to protect tribal interests. The Governor can also make regulations, including ones that prohibit or restrict the transfer of land by or among scheduled tribe members.
• The Governor must submit a report to the President on the administration of the scheduled areas. This is done annually, or whenever the President so requires (Fifth Schedule, para 3). The executive power of the Union also extends to giving directions to the state on this administration.
• A Tribes Advisory Council is constituted in each such state (Fifth Schedule, para 4). It has up to 20 members. About three-quarters of them are scheduled-tribe members of the state legislative assembly. It advises on the welfare and advancement of the scheduled tribes on matters the Governor refers to it.
• A core aim is to stop tribal land from passing into non-tribal hands. Bringing an area under the Fifth Schedule does not create a local self-governing body, make it a Union Territory, or grant the state special-category status. Its consequence is land and customary protection. A transfer of tribal land to non-tribals, including for mining, can be declared null and void. The Supreme Court held this in the Samatha v. State of Andhra Pradesh (1997) judgment.
• Self-governance in these areas comes instead from the PESA Act, 1996 (Panchayats Extension to Scheduled Areas). It extends Part IX (Panchayats) to scheduled areas. It empowers the Gram Sabha to safeguard community resources and customs. In PESA areas the Gram Sabha can prevent the alienation of tribal land and owns minor forest produce. On land and minerals, the Act draws two careful lines. First, the Gram Sabha must be consulted before land is acquired in a scheduled area. Consultation is mandatory, but its advice does not bind the government. Second, a Gram Sabha recommendation is mandatory only for minor minerals: no prospecting licence or mining lease for a minor mineral (such as sand or building stone) can be granted without it. For major minerals there is no such recommendation requirement. A statement that its recommendation is needed for any mining lease whatever the mineral is therefore wrong. PESA grants self-governance, but it does not create autonomous regions. That is the Sixth Schedule's role.

Articles:

• Article 244(1) and the Fifth Schedule: administration and control of the scheduled areas and scheduled tribes in any state other than the four named in the Sixth Schedule.
• Article 339: the Union's power to direct a state on, and report on, the administration of scheduled areas and the welfare of scheduled tribes.
• Article 342: the President specifies the Scheduled Tribes for each state (state-specific list). Parliament may alter it by law.

The Sixth Schedule covers the tribal areas of Assam, Meghalaya, Tripura and Mizoram. Tribal communities there are large and distinct. It gives them a much stronger form of self-rule than the Fifth Schedule.

• These areas are organised as Autonomous Districts, run by elected Autonomous District Councils. Where a district has several tribes, Regional Councils are also formed. A typical District Council has up to 30 members. Most are elected for a five-year term. The rest are nominated by the Governor.
• These councils have real law-making power (Sixth Schedule, para 3) over land, management of forests (other than reserved forests), inheritance, marriage and social customs, and village administration. A law made by a council takes effect only after the Governor assents to it.
• They run village and district courts with civil and criminal jurisdiction (subject to the High Court), and can assess and collect land revenue and levy certain specified taxes.
• An Act of the state legislature does not extend to these areas in the councils' subject-fields unless the District Council so directs. On other matters, the President (for a Central Act) or the Governor (for a state Act) may bar or modify a law's application.
• The Constitution also allows, under Article 244A, the creation of an autonomous state within Assam comprising certain tribal areas, with its own legislature or council of ministers.

Articles:

• Article 244(2) and the Sixth Schedule: administration of the tribal areas of Assam, Meghalaya, Tripura and Mizoram through Autonomous District and Regional Councils.
• Article 244A: Parliament may form an autonomous state within Assam for certain tribal areas, with a local legislature and/or council of ministers.
• Article 275: grants-in-aid from the Union to states for tribal welfare and for raising the administration of scheduled areas.

Constitutional protection of tribal land is completed by a statute on forest land. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, commonly the Forest Rights Act (FRA), recognises the rights of forest-dwelling Scheduled Tribes and other traditional forest dwellers over the forest land they have lived on and used for generations. It was passed to undo a historical injustice: colonial and later forest laws had treated these communities as encroachers on their own land.

The Act recognises two kinds of rights. Individual rights cover self-cultivation and habitation on forest land. Community rights cover grazing, access to water bodies, and ownership of minor forest produce (MFP). The Act expressly classifies bamboo as a minor forest produce, along with items like tendu leaves, honey and medicinal plants, and vests ownership of such produce in the forest dwellers.

• Gram Sabha: the village assembly is the authority that initiates the process of determining the nature and extent of individual or community forest rights. This power is laid down in Section 6(1) of the Act. Claims then pass through sub-divisional and district level committees, but the process starts at the Gram Sabha, not with the forest department or the District Collector.
• Nodal agency: the Ministry of Tribal Affairs, not the environment or forest ministry, is the nodal ministry for implementing the Act.
• Bamboo under the Indian Forest Act: the Indian Forest Act, 1927 (the colonial-era forest law) originally counted bamboo as a "tree", so felling and transit needed state permission. A 2017 amendment removed bamboo grown on non-forest land from the definition of trees, freeing its felling and transit from permits. It did not give forest dwellers a right to fell bamboo grown on forest land. Their claim to bamboo inside forests flows from its MFP status under the FRA, not from the 1927 Act.

Not every disadvantaged tribal community fits the Scheduled Tribe frame. The Denotified Tribes (DNTs) are communities that the colonial state had branded as hereditary criminals under the Criminal Tribes Act, 1871 (a law that "notified" whole communities as criminal by birth and placed them under police surveillance). Independent India repealed that Act in 1952, and the listed communities were "denotified". The term Denotified Tribes therefore refers to tribes earlier classified as criminal tribes, not to aboriginal tribes, nomads in general, or shifting cultivators.

The repeal removed the label but not the stigma. Many states replaced the old Act with Habitual Offenders Acts, and these communities continued to face suspicion, poverty and exclusion. Closely linked are the nomadic and semi-nomadic tribes, communities with no fixed habitation that move for pastoral, trading or artisanal livelihoods. Many DNTs are also nomadic, and many of these groups fall outside the SC, ST and OBC lists, which leaves them without reservation benefits. The Renke Commission (2008) and the Idate Commission (2017), both national commissions on denotified, nomadic and semi-nomadic tribes, recommended their identification and targeted welfare. A Development and Welfare Board for DNTs was set up in 2019 to carry this forward.

The special protections above respond to a wider social fact: marginalisation. To be marginalised is to be forced to the edge of society and left out of its benefits. Marginalised groups are seen as different and less important. They are kept away from resources such as land and education, and given little say in decisions. Marginalisation is rarely about one thing alone. It usually combines low social status, economic hardship and a sense of being culturally looked down upon. It also tends to pass from one generation to the next. Three groups face it most sharply in India: Adivasis, religious minorities and Dalits.

Adivasis, which means original inhabitants, are communities who have lived in and around forests for a very long time. They have their own languages, customs and ways of worship, often tied closely to nature. They were long pictured as backward or primitive. In truth their loss of status came from the loss of their lands and forests. As forests were taken over for mines, dams, industry and wildlife reserves, Adivasis were displaced from the resources their lives depended on. Many were forced to migrate to cities, where they ended up in low-paid and insecure jobs. Their marginalisation is therefore closely linked to being cut off from land and forest.

One parallel provision is worth noting. Just as the President specifies the Scheduled Tribes under Article 342, the President specifies the Scheduled Castes for each state under Article 341. Both lists are state-specific, and only Parliament can alter them by law.

A minority is a community that is small in number compared with the rest of the population. The Constitution gives minorities special protection because, in a democracy where decisions follow the majority, a small group can easily be ignored or overpowered.

• Freedom of religion: every person is free to profess, practise and propagate religion (Article 25), and religious denominations may manage their own affairs (Article 26).
• Article 29(1): any section of citizens with a distinct language, script or culture has the right to conserve it.
• Article 29(2): no citizen may be denied admission to a State-aided educational institution on grounds of religion, race, caste or language.
• Article 30(1): all minorities, whether based on religion or language, have the right to establish and administer educational institutions of their choice.

Muslims are the largest religious minority in India. On several measures of well-being, such as access to education and secure jobs, many Muslims are worse off than the average. Being a minority and being marginalised are not the same thing. But minorities are more open to marginalisation because they can be treated as outsiders. This is why their cultural and religious rights need constitutional protection.

Dalits, earlier called untouchables, were placed at the very bottom of the old caste order and treated as impure. They were kept out of temples, wells, schools and many kinds of work. Although untouchability has been abolished by law, prejudice and discrimination against Dalits still continue in many places, in subtle and not-so-subtle ways.

Marginalised groups do not simply accept their situation. They draw strength from the Constitution.

The first source of strength is the set of Fundamental Rights. These rights belong to every citizen, and the State must respect them. Marginalised groups have demanded that these rights be enforced for them too.

• Article 17: untouchability is abolished and its practice in any form is forbidden, made an offence punishable in accordance with law. This sits inside the Right to Equality (Articles 14–18), not the Right against Exploitation. To give it teeth, Parliament passed the Untouchability (Offences) Act, 1955, renamed the Protection of Civil Rights Act, 1955 in 1976.
• Article 23: prohibits human trafficking and forced labour.
• Article 24: bars employment of children below 14 in factories, mines and hazardous work. The Right against Exploitation covers Articles 23–24 only. Untouchability and minority protection fall elsewhere.

The second source is specific laws. The most important is the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It lists specific crimes against Dalits and Adivasis as serious, punishable "atrocities". These include humiliations such as forcing someone to eat an inedible substance, parading them, or denying access to public spaces. It works alongside the Protection of Civil Rights Act, 1955.

The third is the policy of reservation. A share of seats in legislatures, in government jobs and in colleges is reserved for Scheduled Castes, Scheduled Tribes and Other Backward Classes. The aim is to correct centuries of exclusion.

• Article 15(4): special provision for socially and educationally backward classes, SCs and STs.
• Article 16(4): reservation in public employment.
• Article 46: a Directive Principle directing the State to promote with special care the educational and economic interests of the weaker sections, especially SCs and STs.
• Article 334: reservation of SC and ST seats in the legislatures is not permanent. It carries a sunset clause and is extended periodically.

Watchdog bodies back these guarantees: the National Commission for Scheduled Castes (Article 338), the National Commission for Scheduled Tribes (Article 338A, carved out in 2003), and the National Commission for Backward Classes, which gained constitutional status under Article 338B in 2018.

Beyond rights and laws, marginalised groups have organised social movements, formed their own political voices and insisted on their dignity. Confronting marginalisation is therefore both a legal matter and a social matter. The legal struggle works through the Constitution and the courts. The social struggle works through the movements of the people themselves.