Tribal Autonomy (Fifth & Sixth Schedules) vs One-Nation Governance: Constitutional Balance in India

Introduction

India’s constitutional architecture reflects a delicate equilibrium between unified national governance and the protection of tribal rights, a principle central to tribal autonomy in India. The Fifth and Sixth Schedules of the Constitution embody this balance by creating distinct administrative frameworks for tribal areas while maintaining national integrity. These provisions recognize that tribal communities possess unique cultural identities, traditional governance systems, and special relationships with their ancestral lands, requiring protective mechanisms beyond standard democratic structures.

The tension between tribal self-governance and one-nation governance is not merely administrative but deeply philosophical. This article explores how tribal autonomy in India operates through constitutional provisions, legislative enactments, and judicial interpretations, balancing indigenous rights with national integration.

Constitutional Framework: Article 244 and the Schedules

Article 244 of the Indian Constitution establishes the foundational architecture for administering Scheduled and Tribal Areas. The provision bifurcates tribal governance into two distinct models based on geographical and cultural considerations. Article 244(1) mandates that the Fifth Schedule governs Scheduled Areas and Scheduled Tribes in states other than Assam, Meghalaya, Tripura, and Mizoram [1]. Conversely, Article 244(2) applies the Sixth Schedule to tribal areas specifically in these four northeastern states [1].

This geographic division emerged from deliberations in the Constituent Assembly, where Dr. B.R. Ambedkar articulated a crucial distinction. He explained that tribal communities in areas outside Assam had undergone greater assimilation with Hindu civilization and culture, whereas northeastern tribes retained their distinct civilizational roots, marriage laws, inheritance customs, and social practices [2]. This recognition led to differential governance mechanisms that granted varying degrees of autonomy.

The Fifth Schedule applies to ten states: Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana [3]. It establishes Tribes Advisory Councils and empowers Governors with special responsibilities for tribal welfare. The Sixth Schedule creates Autonomous District Councils with legislative, executive, and judicial powers in Assam, Meghalaya, Tripura, and Mizoram, currently encompassing ten autonomous councils across these states [2].

Regulatory Framework Under the Fifth Schedule

The Fifth Schedule operates through a governor-centric model where the state’s Governor assumes special responsibility for tribal welfare and administration. The Governor advises the President on declaring Scheduled Areas and can make regulations for their governance. Paragraph 5 of the Fifth Schedule grants Governors power to direct that any Act of Parliament or State Legislature shall not apply to a Scheduled Area or shall apply with modifications [1].

Tribes Advisory Councils, mandatory in states with Scheduled Areas, advise on matters concerning tribal welfare. However, their recommendations remain advisory rather than binding, creating implementation gaps. The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, provides the legal mechanism for notifying tribal communities under Article 342, which empowers the President to designate communities as Scheduled Tribes through public notification after consulting the Governor [4].

Land protection forms the cornerstone of Fifth Schedule provisions. Various state-level Land Transfer Regulations prohibit transfer of tribal land to non-tribals without prior approval from specified authorities. The Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, as amended by Regulation II of 1970, exemplifies this protective framework by restricting land alienation in agency tracts [5].

The Panchayats (Extension to Scheduled Areas) Act, 1996

Recognizing that the 73rd Constitutional Amendment extending Panchayati Raj institutions did not automatically apply to Scheduled Areas, Parliament enacted the Panchayats (Extension to Scheduled Areas) Act, 1996, commonly known as PESA [6]. This legislation came into force on December 24, 1996, following recommendations of the Dilip Singh Bhuria Committee established in 1994 [3].

PESA represents a paradigm shift by vesting significant powers directly in Gram Sabhas rather than elected Panchayats. The Act mandates that Gram Sabhas approve projects before implementation, identify beneficiaries for government programs, and provide certificates of fund utilization [3]. Critically, PESA empowers Gram Sabhas to enforce prohibition or regulate intoxicant consumption, prevent land alienation and restore unlawfully transferred tribal land, manage village markets, control money-lending institutions, and exercise authority over minor water bodies, minor minerals, and minor forest produce [3].

Despite its transformative potential, PESA implementation remains partial. Only six states—Andhra Pradesh, Himachal Pradesh, Gujarat, Maharashtra, Rajasthan, and Telangana—had notified PESA Rules as of recent assessments, while Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha lag behind [6]. The legislation requires state governments to align their laws with PESA provisions within one year of presidential assent, but most states have failed to fully comply, often retaining powers at Panchayat level rather than devolving them to Gram Sabhas as mandated [4].

Autonomous Governance Under the Sixth Schedule

The Sixth Schedule establishes a quasi-federal structure within northeastern states by creating Autonomous District Councils (ADCs) and Regional Councils with substantive powers. Each autonomous district has a District Council comprising 30 members, with provisions for Regional Councils where multiple tribes inhabit a single district [2]. These councils derive powers directly from the Constitution rather than from state legislatures, distinguishing them from other local government bodies.

Legislative powers under the Sixth Schedule extend to subjects including land allocation and use, management of forests excluding reserved forests, regulation of jhum cultivation, establishment of village councils, inheritance of property, marriage and divorce, social customs, and administration of civil and criminal justice [2]. Councils can make laws on these subjects, though laws on matters in the State List require Governor’s assent and those on Concurrent List subjects require Presidential assent [2].

Financial autonomy accompanies legislative powers. District Councils assess and collect land revenue, impose taxes on professions and trades, levy taxes on animals and vehicles, collect tolls on roads and bridges, and receive royalty shares from mining licenses within their jurisdiction [2]. However, despite constitutional provisions, state governments often retain parallel administrative structures and delay transferring executive powers and departmental control to councils, creating functional overlaps and conflicts [2].

Recent constitutional amendments have enhanced certain councils’ powers. The Sixth Schedule to the Constitution (Amendment) Act, 1995, granted additional lawmaking powers to the North Cachar Hills Autonomous Council and Karbi Anglong Autonomous Council [7]. Similarly, the Sixth Schedule to the Constitution (Amendment) Act, 2003, created the Bodoland Territorial Council with expanded powers [7].

Landmark Judicial Interpretations

Samatha vs State of Andhra Pradesh (1997)

The Supreme Court’s judgment in Samatha vs State of Andhra Pradesh (1997) constitutes a watershed moment in protecting tribal land rights [5]. The case arose when mining leases were granted to private companies in the Borra Reserve Forest and surrounding villages, a notified Scheduled Area in Visakhapatnam District. Samatha, an organization working for tribal rights, challenged these transfers as violating the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959.

The Court held that the term “person” in Section 3(1) of the Regulation includes both natural and juristic persons, including the government itself [5]. Consequently, the State Government cannot transfer tribal land or government land in Scheduled Areas to non-tribals for mining purposes. The judgment declared all existing mining leases granted to non-tribals null and void and prohibited the State from granting further leases [8].

Significantly, the Court ruled that mining in Scheduled Areas can only be undertaken by State Mineral Development Corporations or cooperatives of tribal persons [8]. The judgment mandated that at least 20 percent of profits from any permissible mining operation must be allocated to a permanent fund for tribal development, alongside expenditure on reforestation and ecological maintenance [8]. This decision established sustainable development principles by balancing resource exploitation with tribal welfare and environmental protection.

Orissa Mining Corporation vs Ministry of Environment & Forest (2013)

The Niyamgiri case, formally titled Orissa Mining Corporation Ltd vs Ministry of Environment & Forest (2013), elevated tribal autonomy to unprecedented levels [9]. Vedanta Resources sought to mine bauxite from the Niyamgiri Hills, home to the Dongaria Kondh tribe, a Particularly Vulnerable Tribal Group. After the Ministry of Environment and Forests denied forest clearance in 2010, the Odisha government’s Orissa Mining Corporation challenged this decision in the Supreme Court.

On April 18, 2013, the Supreme Court issued a landmark order requiring Gram Sabhas in affected villages to determine whether the mining project would infringe upon their cultural and religious rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 [9]. The Court recognized the Dongaria Kondh’s right to worship their deity Niyam Raja on the hilltops and held that this religious right must be preserved and protected [9].

Between July and August 2013, twelve Gram Sabhas unanimously rejected the mining project [9]. In January 2014, following these rejections, the Ministry of Environment and Forests permanently banned mining at Niyamgiri while permitting the alumina refinery at Lanjigarh to continue operating [9]. This case established the principle that tribal communities possess veto power over projects affecting their religious, cultural, and forest rights, effectively implementing Free, Prior and Informed Consent (FPIC) principles despite India not being signatory to international conventions explicitly requiring FPIC [9].

Tension Between Tribal Autonomy and National Unity

The constitutional balance between tribal autonomy and one-nation governance generates inherent tensions. Centralized development policies often clash with tribal self-determination. Large-scale infrastructure projects, mining operations, and industrial corridors frequently target resource-rich tribal areas, creating displacement and cultural disruption despite constitutional protections.

The Fifth Schedule’s advisory nature contrasts sharply with the Sixth Schedule’s substantive autonomy, creating disparities. Tribal communities under the Fifth Schedule possess weaker protections and less decision-making authority than their northeastern counterparts. This has fueled demands for Sixth Schedule status from regions like Ladakh, where 97 percent of the population belongs to Scheduled Tribes [2].

Financial dependency undermines autonomy. Autonomous District Councils remain heavily reliant on state government funding, with substantial gaps between approved budgets and actual disbursements [2]. This fiscal subordination enables state governments to influence council decisions and delay tribal development initiatives.

Land alienation persists despite constitutional safeguards. Exploitative practices including fraudulent transfers, coercion, and debt-based land acquisition continue affecting tribal communities. Nearly 9.4 percent of Scheduled Tribes remain landless compared to the national average of 7.4 percent, and 47.1 percent of Scheduled Tribes in rural areas live below the poverty line against a national average of 33.8 percent [4].

Balancing Development and Cultural Preservation

The judiciary has attempted to reconcile development imperatives with tribal rights through proportionality and sustainability principles. In Samatha, the Court did not prohibit all mining but established conditions ensuring tribal participation through cooperatives and mandating profit-sharing for community development [8]. This approach acknowledges legitimate state interests in resource extraction while protecting tribal communities from exploitation.

The Niyamgiri judgment demonstrated that certain places must remain off-limits to mining activities when tribal religious and cultural rights are at stake [9]. The Court held that the State holds natural resources as trustee for the people, requiring local populations to consent to resource extraction [9]. This trusteeship doctrine balances state sovereignty over natural resources with tribal communities’ prior claims based on historical occupation and cultural significance.

PESA embodies legislative efforts to harmonize grassroots democracy with tribal customs. By recognizing Gram Sabha supremacy in Scheduled Areas, PESA theoretically enables communities to participate meaningfully in development decisions affecting them [3]. However, implementation failures reveal ongoing struggles to translate constitutional vision into administrative reality.

Challenges in Implementation of Tribal Autonomy Provisions in India

Multiple factors impede effective realization of tribal autonomy provisions in India. Bureaucratic apathy and political unwillingness to devolve power create implementation deficits. State governments resist transferring administrative and financial powers to Autonomous District Councils and Gram Sabhas, viewing such transfers as diminishing state authority [2].

Legal inconsistencies between PESA and other legislation generate conflicts. State laws on forest management, mining, and land acquisition often contradict PESA provisions, creating juridical confusion [4]. The absence of robust grievance redressal mechanisms leaves tribal communities without effective remedies when their constitutional rights are violated [4].

Awareness gaps compound implementation challenges. Many tribal communities remain unaware of their rights under constitutional provisions and enabling legislation [3]. Limited resources, inadequate trained personnel, and insufficient institutional capacity at Gram Sabha and council levels hamper effective governance [3].

Political interference undermines Gram Sabha autonomy. Decision-making processes are often captured by dominant interests, with Gram Sabha meetings conducted merely as formalities without genuine deliberation [4]. Social audits across states reveal that development schemes are approved on paper without actual Gram Sabha consultations [4].

The Way Forward

Strengthening tribal autonomy in India while maintaining national unity requires multifaceted reforms. Full and faithful implementation of PESA across all Scheduled Areas with adequate resource allocation and capacity building would empower grassroots governance. States must harmonize their laws with PESA mandates, particularly ensuring Gram Sabha rather than Gram Panchayat supremacy [4].

Enhancing Autonomous District Council autonomy through guaranteed financial transfers, elimination of parallel state administrative structures, and genuine executive power devolution would realize Sixth Schedule intentions [2]. Expanding Sixth Schedule coverage to additional tribal-majority areas could provide stronger protections where Fifth Schedule provisions prove inadequate.

Robust legal aid systems and accessible grievance redressal mechanisms would enable tribal communities to enforce their constitutional rights. Judicial expansion of tribal consent requirements beyond religious rights to encompass broader environmental and livelihood impacts would strengthen protective frameworks.

Participatory development models ensuring tribal representation in project planning, implementation, and benefit-sharing would align development with community aspirations. Recognition that some ecologically or culturally sensitive areas should remain protected from extractive industries would preserve tribal heritage while permitting sustainable development elsewhere.

Conclusion

The constitutional frameworks governing tribal areas reflect India’s commitment to unity in diversity. The Fifth and Sixth Schedules recognize that safeguarding indigenous communities’ distinct identities and traditional governance structures is vital for tribal autonomy in India, strengthening rather than weakening the national fabric. Yet, a gap persists between constitutional ideals and ground realities.

Judicial interventions in Samatha and Niyamgiri have progressively expanded tribal rights and autonomy, establishing principles of consent, sustainable development, and cultural preservation. These judgments demonstrate that one-nation governance need not mean uniformity but can accommodate differentiated arrangements respecting local contexts.

The ongoing challenge lies in translating constitutional provisions and judicial pronouncements into effective administration. Political will, bureaucratic commitment, adequate resource allocation, and genuine participatory governance are essential for realizing tribal autonomy’s transformative potential. Only through such commitment can India achieve the delicate balance between national integration and tribal self-determination that its Constitution envisions.

References

[1] Constitution of India, Article 244. Available at: https://www.mea.gov.in/Images/pdf1/S6.pdf 

[2] India Mongabay. (2024). What is the Sixth Schedule? Why is Ladakh demanding to be brought under it? Available at: https://india.mongabay.com/2024/05/what-is-the-sixth-schedule-why-is-ladakh-demanding-to-be-brought-under-it/ 

[3] Chahal Academy. PESA Act 1996 – Panchayat Extension to Scheduled Areas Act. Available at: https://chahalacademy.com/pesa-act 

[4] UNDP. (2012). Panchayat (Extension to Scheduled Areas) Act, 1996 – Policy Brief. Available at: https://www.undp.org/sites/g/files/zskgke326/files/migration/in/UNDP-Policy-Brief-on-PESA.pdf 

[5] Samatha v. State of Andhra Pradesh, AIR 1997 SC 3297. Available at: https://indiankanoon.org/doc/1969682/ 

[6] Drishti IAS. Panchayat Extension to Scheduled Areas (PESA) Act, 1996. Available at: https://www.drishtiias.com/daily-news-analysis/panchayat-extension-to-scheduled-areas-pesa-act-1996 

[7] Ministry of External Affairs, Government of India. Sixth Schedule of the Constitution. Available at: https://www.mea.gov.in/Images/pdf1/S6.pdf 

[8] Samata India. (2023). Samata Judgement. Available at: https://www.samataindia.org.in/samata-judgement/ 

[9] Orissa Mining Corporation Ltd vs Ministry Of Environment & Forest, decided on 18 April, 2013. Available at: https://indiankanoon.org/doc/109648742/