In the Indian Constitution, tribal area governance occupies a special place. Respecting the country’s diversity and seeking to implement equality through justice, the Fifth Schedule represents one of the most sensitive experiments in constitutional democracy. Recognising the distinct social and cultural character of tribal societies, the Constitution devised special constitutional safeguards to protect their rights.
Through Article 244(1) and the Fifth Schedule, a special administrative system was established for the Scheduled Areas. The Constitution acknowledges that equality does not mean applying identical laws to everyone; rather, achieving justice requires different protections for different circumstances. The Governor is not merely a conventional executive head of the State but is entrusted with the responsibility of acting as a constitutional trustee for tribal welfare and the protection of tribal rights.
However, viewed against the objectives of these constitutional safeguards, a crucial question arises—has the Fifth Schedule truly succeeded in protecting tribal rights?
According to the 2011 Census, India’s Scheduled Tribe population is approximately 10.4 crore, constituting 8.6% of the total population. The Scheduled Areas notified under the Fifth Schedule cover about 11.3% of the country’s land area and are spread across Andhra Pradesh, Telangana, Chhattisgarh, Odisha, Jharkhand, Madhya Pradesh, Maharashtra, Gujarat, Rajasthan, and Himachal Pradesh. Yet, only about 41% of the total tribal population resides in these Scheduled Areas, while the remaining 59% live outside the protective ambit of the Fifth Schedule.
In 1958, Jawaharlal Nehru articulated the ‘Tribal Panchsheel Principles’, rejecting the idea of forcibly assimilating tribal communities into the mainstream in the name of development. He emphasised that development should respect tribal culture, ways of life, and self-governance. His approach sought to minimise external interference and provide technical assistance only where necessary. In essence, tribals themselves should play the primary role in governing their regions and determining their own development.
Governor’s powers – Constitutional intent
Whenever necessary to protect tribal rights, the Governor, under Paragraph 5(1) of the Fifth Schedule, may by notification direct that any central or state law shall not apply to Scheduled Areas or shall apply with specified modifications—even retrospectively, if required. This power is a potent instrument to shield tribals from laws detrimental to their interests.
Further, under Paragraph 5(2), for ensuring ‘peace and good governance’, the Governor may frame regulations relating to tribal land transfers, moneylending, and social regulation in Scheduled Areas. Upon receiving recommendations from the Tribal Advisory Council and the President’s assent, such regulations acquire the force of law. In effect, the Raj Bhavan functions as a legislative authority for the Scheduled Areas.
Role of judiciary
Over the past decades, Indian courts have played a crucial role in interpreting the Fifth Schedule, clarifying its protective spirit and constitutional boundaries. In Samatha vs State of Andhra Pradesh (1997), the Supreme Court affirmed that the Governor has an extraordinary constitutional role in Scheduled Areas.
It held that, in matters concerning tribal rights, the Governor is not bound by the aid and advice of the Council of Ministers under Articles 154 and 163, but must act independently as a protector of tribal interests. The court emphasised that the Governor is not a mere signatory authority but a guardian of tribal rights.
Similarly, in P Rami Reddy vs Andhra Pradesh (1988), the Supreme Court upheld the constitutional validity of stringent restrictions such as Regulation 1 of 1970, aimed at preventing alienation of tribal lands. This ruling reaffirmed the Governor’s legislative powers under Paragraph 5(2).
Regulation 1 of 1970 prohibits land transfers in Scheduled Areas in favour of non-tribals. Thus, land transfers between tribals and non-tribals, as well as among non-tribals themselves, are invalid. In Samatha vs Andhra Pradesh (1997), the Court further held that even the State must be treated as a non-tribal for the purpose of land transfers under this regulation.
In Amrendra Pratap Singh vs Tej Bahadur Prajapati (2003), the Supreme Court ruled that non-tribals cannot acquire title over tribal lands through adverse possession, clarifying that general legal doctrines cannot override constitutional protections. The same court in Lingappa Pochanna Appelwar vs State of Maharashtra (1985) held that the State has a constitutional duty to adopt positive and stringent measures to ensure the survival of tribal communities and the preservation of their integrity and dignity.
Despite this strong judicial foundation, most Governors’ offices lack an effective mechanism to examine, in advance, whether central or state laws are inconsistent with tribal interests before being applied to Scheduled Areas. The need to establish a dedicated Tribal Cell in the office of the Governor to oversee constitutional responsibilities relating to Scheduled Areas and Scheduled Tribes has been a recurring agenda item in Governors’ Conferences since 2012.
In its 2014 report, the High-Power Committee constituted by the Government of India underlined that setting up such a cell in all Fifth Schedule States is a long-standing and essential requirement to safeguard tribal interests and ensure independent and conscientious functioning.
Moreover, the Conferences of the Governors repeatedly recommended during 2013–2015 the setting up of Tribal Cells in the offices of the Governors. In the February 2015 conference, the States were specifically advised to establish such cells on the lines of the model adopted by Rajasthan.
However, several States having Scheduled Areas, including the Telugu States, do not have Tribal Cells to oversee the implementation of the Fifth Schedule of the Constitution of India to safeguard the interests of tribals.
As a result, general laws are routinely extended to these areas, gradually weakening the special protections envisaged by the Constitution.
At the same time, recent Supreme Court judgements have narrowed the scope of the Governor’s powers. Compared to earlier judicial approaches that prioritised tribal protection, contemporary judgements reflect a significant shift in perspective, making the protection of tribal rights increasingly complex.
Recent judicial trends – New challenges
In Chebrolu Leela Prasad Rao vs State of Andhra Pradesh (2020), a five-judge Constitution Bench struck down the 100% reservation for local tribals in teacher posts in Scheduled Areas. While acknowledging the special nature of the Governor’s powers, the court held that such powers are subject to constitutional principles of equality and limits on reservation.
Although the judgement emphasised fundamental rights, it had unintended adverse consequences. In Andhra Pradesh and Telangana, thousands of local tribal candidates were adversely affected in teacher and other government recruitments in the Scheduled Areas. In Andhra Pradesh alone, around 4,626 teacher posts had earlier been filled by local tribals, and several posts in other departments were filled through 22 notifications issued by the Governor under Paragraph 5(1) of the Fifth Schedule. Following the judgement, the Governor can no longer issue such notifications for tribal employment. The ruling has had far-reaching implications for tribal recruitment in Scheduled Areas across several States.
This approach was reaffirmed by the Supreme Court in Adivasis for Social and Human Rights Action vs Union of India (2023). The Court clarified that the Fifth Schedule exists to protect tribal rights, not to negate the rights of non-tribals. It held that the Constitution does not curtail the fundamental rights of non-tribals—such as residence and voting rights—in Scheduled Areas, and that Article 19(1)(e) guarantees their right to reside anywhere in India.
Unless specifically exempted by the Governor, general laws would continue to apply to Scheduled Areas. Therefore, laws like the Representation of the People Act, 1950, and the Delimitation Act, 2002, are valid in Scheduled Areas. While constitutionally sound, this reasoning risks diluting the independent protective role of the Governor as envisaged by the Constitution’s framers.
The roots of Fifth Schedule protections lie in the Government of India Act, 1935, which classified certain regions as ‘excluded’ or ‘partially excluded’ areas. Under Section 92(1), central and provincial laws did not automatically apply to these areas unless expressly permitted by the Governor. However, Article 395 of the Constitution of India expressly repealed the Government of India Act, 1935, along with the Indian Independence Act, 1947, and all other enactments amending or supplementing those Acts.
After independence, partially excluded areas were incorporated into the Fifth Schedule. However, unlike the colonial framework, recent judicial interpretations assume that general laws apply to Scheduled Areas unless specifically exempted by the Governor, marking a departure from the original protective spirit.
For administrators and policymakers, the Fifth Schedule is not a relic of the past but a living constitutional instrument. It does not seek separation between tribals and non-tribals; rather, it envisions governance that respects tribal self-rule, culture, and customary laws. Policies relating to forest rights, prevention of land alienation, ownership of minor forest produce, and self-governance under the Panchayat (Extension to Scheduled Areas) Act (PESA) must all be implemented in the spirit of this constitutional trust.
At a time when judicial interpretations are evolving and autonomy in Scheduled Areas is steadily diminishing, it is imperative to revisit and strengthen the Fifth Schedule framework. Clear constitutional amendments are required to vest Governors with effective review powers over the application of general laws in Scheduled Areas, free from governmental interference. For the Fifth Schedule to truly serve as an instrument of justice, self-determination, and cultural protection, governments must reaffirm their constitutional commitment to India’s tribal citizens.
The ruling of the SC in Samatha vs State of Andhra Pradesh makes it clear that the Constitution does not envisage a market-driven economy in Scheduled Areas but a justice-orientated constitutional order centred on protection of tribal land, livelihood, and dignity.
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.