Misinterpreting the Constitution to identify Scheduled Areas is hurting tribals in AP

The recent exercise undertaken for the declaration of non-Scheduled Area as Scheduled Area in Andhra Pradesh has drawn a lot of attention. The tribals living in the notified Scheduled Area will have special constitutional protection under the Fifth schedule to the Constitution, unlike in general areas. The Governor is empowered to modify any law made by either the Parliament or Legislature of the state for the benefit of tribals in the Scheduled Area. Further, he is also empowered to prohibit or regulate the transfer of tribal lands in favour of non-tribals in addition to money lending business to safeguard the interest of tribals with the consent of the President of India. Of course, it is also debatable how best the tribal protective constitutional rights ensured are implemented in the Scheduled Area.The arbitrary exercise of executive power and misinterpretation of the constitutional purpose for defining the Scheduled Area would likely affect the rights of Adivasis in Andhra Pradesh. The power of the President of India for notifying the Scheduled Area under Fifth Schedule to the Constitution is an integral component of the constitutional design and purpose. The problem arises when recommendations for Scheduled Area notifications are expected to propose a revenue village with an assumption that it is the only sole unit for seeking a declaration as a Scheduled Area. In fact, it is not a germane consideration or intent of the Constitution. Article 244 (1) of the Constitution which appears in Part X, provides that the administration of the Scheduled Areas and Scheduled Tribes in States (other than Assam, Meghalaya and Tripura) shall be according to the provisions of the Fifth Schedule.The expression ‘Scheduled Areas’ in Para 6(1) of the Fifth Schedule means such areas as the President may by order declare to be Scheduled Areas. Therefore, no constitutional norm specifying the territorial division is provided for the declaration of Scheduled Area. Para 6(2) confers powers exclusively on the President to declare any area as Scheduled Area. “Neither the executive government nor the state legislature, much less the court, can declare an area to be a Scheduled Area,” as per the decision of the AP High court in the Mandava Rama Krishna case, given on April 17, 2014.Public Interest Litigations (PILs) challenging the notification issued in 2007 declaring the Scheduled Area on the ground that the percentage of Scheduled Tribe (ST) population is less than 50% in some blocks of Jharkhand, was dismissed by the Jharkhand High Court. The court observed that the declaration of ‘Scheduled Area’ being within the exclusive discretion of the President, neither violated any constitutional provisions, nor had the exercise of power been done on extraneous considerations so as to be amenable to judicial scrutiny. Government reports and suggestionsThe Dhebar Commission report of the Scheduled Areas and Scheduled Tribes Commission in 1961, suggested four criteria for declaring new areas as Scheduled Areas. They are the preponderance of tribal population, compactness and reasonable size of the area, under-developed nature of the area and marked disparity in the economic standard of the tribals living in the areas.The Annual Report of the Ministry of Tribal Affairs, 2022, further describes that the compactness and reasonable size of the area; a viable administrative entity such as district, taluk as part of the criteria are not spelt in the Constitution or any law but have become well established. Therefore, the ‘unit’ chosen for scheduling as per the government of India norm is an ‘area’ of reasonable size.The report of the Members of Parliament and experts constituted by the Indian government in 1994, known as the Bhuria Committee, accepts the community, rather than an administrative unit like a village as the basic unit of the system of self-governance in tribal areas. The committee reported recommendations of various government-appointed committees to include the remaining Tribal Sub-Plan (TSP) and Modified Area Development Approach (MADA) areas, as well as similar pockets, under the Scheduled Areas notification. Most states have ignored this to date.The AP government decided in 1976 to include only such non-scheduled villages where the tribal population is 50% and above, subject to the condition that such villages are contiguous to the existing Scheduled Area or villages in the Scheduled Area. However, the government submitted proposals earlier to the Union government proposing to include 115 uninhabited villages in the Scheduled Areas along with 679 non-scheduled sub-plan villages. Since then the demand for the inclusion of non-scheduled villages in the Scheduled Area has been pending.As per the estimated figures, around 384 revenue villages and 1,765 habitations covering various revenue villages in the erstwhile Srikakulam, Vizianagaram, Visakhapatnam, East and West Godavari districts have 50% and above ST population and are eligible for notification as Scheduled Area as per 2011 census. However, around 57 revenue villages and 540 habitations covering various revenue villages spread over 30 sub-plan mandals of five newly constituted districts of Srikakulam, Parvathipuram Manyam, Anakapalli, Vijayanagaram and Eluru, would disappear from the proposals if the revenue villages are taken as a criterion for the declaration of Scheduled Area leaving tribal-dominated habitations in some of the revenue villages.Sending proposals taking revenue village as a unit would largely affect tribals living in 31 revenue villages and 283 habitations in Srikakulam district while 16 revenue villages and 144 habitations in Parvathipuram Manyam district of the total 57 revenue villages and 540 habitations as per the assessment. Non-tribals may likely grab the land of unsophisticated tribals, due to a lack of legal protection, if the area within the boundaries of the revenue village alone is notified as Scheduled Area leaving the forest and other lands located outside of the revenue villages. That being the case, the very purpose of seeking non-Scheduled Area as Scheduled Area would be defeated. Proposals from other statesA survey of literature further reveals that Rajasthan proposed different administrative units for extension of the Scheduled Area including gram panchayats, taluks and panchayat samithis in 2018 covering MADA areas also. Accordingly, the President of India issued a constitutional order in 2018 redefining the specified areas to be the Scheduled Areas, noting that any reference to a territorial division by whatever name indicated shall be construed as a reference to the territorial division of that name as existing at the commencement of the order. Therefore, the territorial division of the proposed area for inclusion in the Scheduled Area need not be a ‘revenue village’.The President also issued a Constitutional Order (No 123) in 1985 specifying the Scheduled Area including several ‘forest’ villages in Dhule, Jalgaon and Yavatmal districts in Maharashtra. The Kerala government in 2015 proposed tribal colonies, wards in gram panchayats and hamlets to be included in the Scheduled Area. The government took different units for proposing the declaration of the Scheduled Area. ‘Village’ defined under Union lawsKeeping the recommendations of the Bhuria Committee in mind, the Indian government enacted the provisions of the Panchayats Extension to Scheduled Area (PESA) Act 1996 which defined the term ‘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 per its traditions and customs, unambiguously deviating from the normal definition of a village as a revenue village or village at gram panchayat level.This definition was adopted in the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (Forest Rights Act), in the Scheduled Areas. This definition is applicable outside the Scheduled Area also. Further, the definition of the ‘forest villages’ under the Section 2(f) read with Sec 2(p)(iii) requires all forest villages, whether notified as a village or not, to be treated as ‘village’ in the Forest Rights Act and further enlarges the scope and meaning of the word ‘village’ in the Scheduled Area. Therefore, the general administrative unit of ‘revenue village’, limited to its jurisdiction within the revenue boundaries of the village, is not applicable as the unit for establishing the statutory authority for determining and recognising forest rights under the Forest Rights Act over forest lands located within and outside of the village boundaries.Any attempt to deviate from the constitutional purpose of notifying the non-Scheduled Area as Scheduled Area will lead to a trivialisation of the Constitution and affect the rights of Adivasis in Andhra Pradesh.Palla Trinadha Rao is a lawyer and an activist working for tribal rights for more than three decades. Views expressed here are the author’s own.