National Commission for Scheduled Tribes

The National Commission for Scheduled Tribes is the youngest of India’s equality commissions and the one with the widest territory. Its mandate is not only the protection of a community but the supervision of an entire parallel constitutional order — Scheduled Areas, autonomous councils, forest rights and a body of law built on the premise that tribal India must be governed differently from the rest. That is why the Commission’s design gap matters more here than elsewhere: the machinery it is meant to police is elaborate, and the instrument given to police it is a recommendation.

From a Special Officer to Article 338A

• Article 338 as originally enacted created not a commission but a Special Officer for the Scheduled Castes and Scheduled Tribes, appointed by the President.
  • His duty was to investigate all matters relating to the safeguards provided for SCs and STs under the Constitution and to report to the President on their working at such intervals as the President directed.
  • The President was required to lay all such reports before each House of Parliament.
  • The office was known in practice as the Commissioner for Scheduled Castes and Scheduled Tribes, and it was the sole institutional watchdog for both communities from 1950 to 1990.
  • The tribal half of that mandate was structurally the weaker half, because tribal questions are territorial and administrative rather than only social, and a reporting officer had no purchase on the administration of Scheduled Areas.

The 65th Amendment and the multi-member commission

• The Union government initiated the 65th Constitutional Amendment in 1988 on the explicit finding that institutional support was insufficient.
  • The Constitution (Sixty-fifth Amendment) Act came into force in 1990, substituting Article 338 entirely.
  • It replaced the Special Officer with a high-level, multi-member National Commission for Scheduled Castes and Scheduled Tribes.

The 89th Amendment and the case for a separate tribal commission

• The Constitution (Eighty-ninth Amendment) Act, 2003 bifurcated the joint commission into two constitutional bodies: the National Commission for Scheduled Castes under Article 338 and the National Commission for Scheduled Tribes under Article 338A.
  • The NCST came into existence on 19 February 2004, the date it now observes as its foundation day.
• The argument for separation was that the two communities suffer disadvantage of fundamentally different kinds, and a single body was bound to privilege one grammar of disadvantage over the other.
  • Scheduled Caste disadvantage is social and relational — untouchability, occupational stigma, exclusion within a shared village society.
  • Scheduled Tribe disadvantage is territorial and resource-based — alienation of land, loss of forest access, displacement by dams and mines, and the erosion of self-governance in areas the Constitution set apart.
• The separation also acknowledged the geography of the problem. Scheduled Tribes are concentrated in central India, the North-East and the hill regions, where the relevant law is the Fifth Schedule, the Sixth Schedule and Article 371, not the anti-untouchability provisions.

Composition, Appointment and the Independence Architecture

• The Commission consists of a Chairperson, a Vice-Chairperson and three other full-time members, of whom at least one must be a woman.
  • All five are appointed by the President by warrant under his hand and seal, the same instrument used for the Comptroller and Auditor General and the judges of the higher courts.
  • The conditions of service and tenure are determined by the President by rule, which places them in the government’s gift rather than in a statute.
• Article 338A(2) leaves composition to Parliament, but no Parliament has legislated on it, so the entire architecture rests on executive rules of 2004.
  • The term is three years, and a member may hold office for a maximum of two terms.
• There is no prescribed qualification, no search committee, no consultation with the Leader of the Opposition and no fixed ground or procedure for removal.
  • Appointments have in practice gone almost exclusively to serving or former politicians from tribal constituencies, which supplies political weight and community legitimacy but not institutional independence.
  • The current Chairperson, Antar Singh Arya, a former Madhya Pradesh minister, was appointed in March 2024 after the office had been vacant since July 2023.
• The Vice-Chairperson’s post has been vacant since 2019, and the Commission has for long stretches functioned below strength, which is not a detail of housekeeping but a measure of how seriously the appointing authority treats the body.

Feature	NCST	Election Commission	CAG
Source of composition rules	Executive rules, Parliament has never legislated	Statute of 2023	Constitution and the 1971 Act
Qualification prescribed	None	None	None
Removal	At the President’s pleasure, no procedure laid down	CEC only like a Supreme Court judge	Only like a Supreme Court judge
Salary charged on the Consolidated Fund	No	Yes	Yes
Output	Recommendation	Binding orders	Report to the legislature

The Six Functions Under Article 338A(5)

The Commission’s duties are stated in the Constitution itself and are identical, word for word, to those of the Commission for Scheduled Castes, with “Scheduled Tribes” substituted throughout.

• To investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under the Constitution, under any other law for the time being in force, or under any order of the Government, and to evaluate the working of such safeguards.
• To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes.
• To participate and advise on the planning process of socio-economic development of the Scheduled Tribes, and to evaluate the progress of their development under the Union and any State.
• To present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards.
• To make recommendations in those reports as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes.
• To discharge such other functions in relation to the protection, welfare, development and advancement of the Scheduled Tribes as the President may, subject to any law made by Parliament, by rule specify.
• The six read as a closed loop that never leaves the paper: investigate, inquire, advise, report, recommend.
• The first function is the widest in Indian constitutional law: it covers safeguards under the Constitution, under any law, and under any executive order.

The eight additional functions specified in 2005

• The sixth function is an open door, and the President walked through it almost immediately: a rule notified through the Ministry of Tribal Affairs in 2005 specified eight additional duties unique to the NCST.
  • Measures to be taken over conferring ownership rights of minor forest produce on Scheduled Tribes living in forest areas.
  • Safeguarding tribal rights over mineral resources and water resources in accordance with law.
  • Measures for the development of tribals and for more viable livelihood strategies.
  • Measures to improve the efficacy of relief and rehabilitation for tribal groups displaced by development projects.
  • Measures to prevent alienation of tribal people from land and to effectively rehabilitate those already alienated.
  • Eliciting maximum cooperation and involvement of tribal communities for protecting forests and undertaking social afforestation.
  • Measures for the full implementation of PESA, 1996.
  • Measures to reduce and ultimately eliminate shifting cultivation.
• These eight are the substantive heart of the tribal question, and for two decades they were effectively unworked.
  • In September 2025, for the first time since the rule was made, the Commission constituted a special internal committee and three sub-committees — on livelihood and resource rights, on land alienation and rehabilitation, and on PESA, forest governance and shifting cultivation — to report on how these duties could actually be discharged.
• The eighth duty sits uneasily with the first: shifting cultivation is an ancient livelihood system and a marker of identity in the North-East, and a mandate to eliminate it reads as the imposition of alien values the Commission exists to resist.

Reports, Civil Court Powers and the Duty to Consult

The report-and-memorandum mechanism

• Under Article 338A(5)(iv) the Commission presents an annual report to the President and may submit special reports whenever it thinks necessary.
• Article 338A(6) requires the President to lay every such report before each House of Parliament, accompanied by a memorandum explaining the action taken on the Commission’s recommendations.
  • Crucially, the memorandum must also state the reasons for the non-acceptance of any recommendation.
• Article 338A(7) extends the same duty to the states: where a report concerns a matter with which a state government is concerned, a copy goes to the Governor, who lays it before the state legislature with a similar memorandum.
• The mechanism works only if the reports are actually laid, and they have not been.
  • The Commission’s annual reports for 2018-19 through 2022-23 were submitted to the President but not tabled in Parliament, so five consecutive years of constitutional findings never reached the legislature at all.
  • The Second Administrative Reforms Commission identified precisely this failure and recommended a dedicated parliamentary committee for all the equality commissions, so that reports would be examined rather than merely received.

A constitutional duty to explain non-compliance is worthless if the document that would trigger it never reaches the House.

Powers of a civil court

• Article 338A(8) gives the Commission the powers of a civil court trying a suit while investigating any matter or inquiring into any complaint, and it may regulate its own procedure.
  • Summoning and enforcing the attendance of any person from any part of India and examining him on oath.
  • Requiring the discovery and production of any document.
  • Receiving evidence on affidavits.
  • Requisitioning any public record from any court or office.
  • Issuing commissions to examine witnesses and documents.
  • Any other matter which the President may determine.
• The asymmetry is exact and is a design choice rather than an oversight: the Commission has the powers of a court to establish what happened and the powers of a correspondent to do anything about it.

The duty to consult on major policy

• The Union and the state governments are required to consult the Commission on all major policy matters affecting Scheduled Tribes.
  • This duty appears in the proviso to Article 338A(9) and is the Commission’s only pre-emptive power — every other function operates after the damage.
• In practice the duty is honoured thinly.
  • There is no consequence for failing to consult — no policy has ever been invalidated for want of the Commission’s views.
• The Forest (Conservation) Amendment Act, 2023 is the standard illustration: legislation reshaping the legal status of forest land across the country moved through Parliament by way of a Joint Committee without the tribal commission’s consultation becoming a decisive step in the process.

Tribal Panchsheel: The Normative Frame the Commission Inherited

Before there was a commission there was a doctrine, and Indian tribal policy is still argued within its terms. Jawaharlal Nehru set out five principles — the Tribal Panchsheel — in an article titled ‘The Right to Tribal People’ published in the Indian Journal of Social Work, and restated them in his foreword to a study of the North-East Frontier Agency.

• People should develop along the lines of their own genius, and the imposition of alien values should be avoided.
• Tribal rights in land and forest should be respected.
  • This is the principle with the sharpest legal afterlife: it is the ancestor of the Fifth Schedule land transfer regulations, of PESA’s minor forest produce clause and of the Forest Rights Act’s recognition of pre-existing rights.
• Tribals should be trained and built up into a team of their own people to do the work of administration and development.
• Tribal areas should not be over-administered, nor overwhelmed with a multiplicity of schemes.
• Results should be judged not by statistics or by the money spent, but by the quality of human character that is evolved.

“People should develop along the lines of their own genius and we should avoid imposing anything on them. We should try to encourage in every way their own traditional arts and culture.” — Jawaharlal Nehru

• The Panchsheel was a compromise between two positions that had dominated earlier debate.
  • The isolationist position, associated with Verrier Elwin’s earlier writing, held that contact itself was destructive and tribal societies should be insulated in something like a national park.
  • The assimilationist position, associated with G. S. Ghurye, held that tribals were simply “backward Hindus” whose distinctness was a product of poverty and would dissolve with development.
  • Nehru chose integration — participation in the national economy and polity without cultural erasure — and every statute since has claimed to implement it.

The Safeguards the Commission Is Required to Police

The Commission’s first function is defined by reference to “the safeguards”, and those safeguards are scattered across four parts of the Constitution and half a dozen statutes. They are conventionally grouped under five heads.

Educational and cultural safeguards

• Article 15(4) permits the state to make special provision for the advancement of socially and educationally backward classes and of the Scheduled Castes and Scheduled Tribes.
• Article 23 prohibits traffic in human beings, begar and other forms of forced labour, and is the root of the bonded labour legislation that has always borne heavily on tribal debtors.
• Article 29 protects the right of any section of citizens with a distinct language, script or culture to conserve it, and bars denial of admission to state-maintained or state-aided institutions on grounds of religion, race, caste or language.
• Article 46 directs the state to promote with special care the educational and economic interests of the Scheduled Castes and Scheduled Tribes, and to protect them from social injustice and exploitation.
• Article 350 entitles every person to submit a representation for the redress of a grievance to any authority of the Union or a state in any language used in the Union or that state.
  • The provision that bears more directly on tribal education is Article 350A, which places on every state and local authority the duty to provide adequate facilities for instruction in the mother tongue at the primary stage to children of linguistic minority groups.

Social safeguards

• Article 24 prohibits the employment of any child below fourteen in a factory, mine or other hazardous employment.

Economic safeguards

• Article 244 is the gateway provision: the Fifth Schedule applies to the administration and control of Scheduled Areas and Scheduled Tribes in states other than Assam, Meghalaya, Tripura and Mizoram, and the Sixth Schedule applies to the tribal areas in those four states.
• Article 275(1) provides grants-in-aid from the Consolidated Fund of India to states for tribal welfare schemes and for raising the level of administration of Scheduled Areas.
• Article 339(1) empowers the President to appoint a commission on the administration of Scheduled Areas and the welfare of Scheduled Tribes at any time.
• Article 342 provides that the President specifies the Scheduled Tribes for a state by public notification after consulting the Governor, and that only Parliament by law may thereafter include or exclude a community.

Political safeguards

• Article 330 reserves seats for Scheduled Castes and Scheduled Tribes in the House of the People, and Article 332 does the same in the legislative assemblies of the states.
  • 47 Lok Sabha seats are currently reserved for Scheduled Tribes, and reservation in assemblies is proportionate to state ST population.
• Article 334 originally limited reservation of seats to ten years and has been extended by successive amendments.
  • The 104th Amendment (2019) extended reservation for the Scheduled Castes and Scheduled Tribes to 25 January 2030 — eighty years from commencement — and simultaneously ended the nomination of Anglo-Indians to the Lok Sabha and the state assemblies, so that provision now covers only the two Scheduled communities.
• The proviso to Article 164(1) requires a Minister in charge of tribal welfare in Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha, who may also be in charge of the welfare of the Scheduled Castes and backward classes.
• Article 243D reserves seats and chairpersonships in panchayats for Scheduled Tribes in proportion to their population, and Article 243T does the same in municipalities.
• Article 371 and its lettered clauses build an asymmetric federal order around tribal and regional distinctiveness.

Provision	State	Core protection
371	Maharashtra and Gujarat	Development boards for Vidarbha, Marathwada and Saurashtra, equitable funds and technical education
371A	Nagaland	No Act of Parliament on Naga customary law, religious or social practices, land ownership and transfer applies unless the assembly so decides
371B	Assam	Assembly committee of members from tribal areas
371C	Manipur	Assembly committee for the hill areas, with the Governor reporting to the President
371D and 371E	Andhra Pradesh and Telangana	Equitable opportunities in employment and education, an administrative tribunal, a central university
371F	Sikkim	Protection of pre-merger laws and seat reservation for sections of the population
371G	Mizoram	Same protection as Nagaland for Mizo customary law and land
371H	Arunachal Pradesh	Special responsibility of the Governor for law and order
371I and 371J	Goa and Karnataka	Assembly strength; a development board for Hyderabad-Karnataka

Statutory safeguards

• The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, with its 2015 and 2018 amendments.
• The Bonded Labour System (Abolition) Act, 1976, which abolished the system, extinguished the debts on which it rested and criminalised enforcement of a bonded debt.
• The Child Labour (Prohibition and Regulation) Act, 1986, amended in 2016 to bar employment of children below fourteen in all occupations.
• The Panchayats (Extension to the Scheduled Areas) Act, 1996 — PESA.
• The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 — the Forest Rights Act.
• The Forest (Conservation) Act, 1980, renamed by amendment in 2023, which requires central approval before forest land is diverted to non-forest use.
• The state land transfer regulations made under the Fifth Schedule, the oldest and most litigated tribal protections in the country.

The Fifth Schedule: Scheduled Areas and the Governor’s Special Responsibility

The Fifth Schedule is the most important and the least used of the tribal safeguards. It creates a separate legal order inside ordinary states, and it hands the key to that order to a functionary who has almost never turned it.

What a Scheduled Area is and how it is declared

• Paragraph 6 empowers the President by order to declare an area to be a Scheduled Area, and to alter, increase, diminish or rescind that declaration after consulting the Governor.
• Ten states currently have Scheduled Areas: Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana.
  • The criteria applied since the Dhebar Commission are a preponderance of tribal population, compactness and reasonable size, underdevelopment, and marked economic disparity with neighbouring areas.
• The scheduling of areas and the scheduling of tribes are separate exercises, and the mismatch is a structural defect: a Scheduled Tribe in a non-scheduled district gets reservation but not PESA, not the land transfer regulations and not the Governor’s protection.

The Governor’s powers

• Paragraph 3 requires the Governor to make a report to the President annually, or whenever the President so requires, on the administration of Scheduled Areas in the state, and the Union may give directions to the state on that administration.
  • These reports have been perfunctory to the point of uselessness, typically reproducing departmental scheme statistics rather than reporting on land alienation, displacement or the state of tribal self-governance.
• Paragraph 5(1) is the most striking power in the Schedule: the Governor may by public notification direct that any Act of Parliament or of the state legislature shall not apply to a Scheduled Area, or shall apply subject to exceptions and modifications.
  • It has been used with extraordinary rarity. No Governor has used it to keep a mining, land acquisition or forest statute out of a Scheduled Area, which is the case for which it was designed.
• Paragraph 5(2) allows the Governor to make regulations for the peace and good government of a Scheduled Area, and in particular to prohibit or restrict the transfer of land by or among members of Scheduled Tribes, to regulate the allotment of land, and to regulate money-lending to tribals.
  • The state land transfer regulations — Andhra Pradesh’s Regulation I of 1959, Odisha’s Regulation 2 of 1956, and their equivalents — descend from this paragraph, and are the provisions litigated in every land alienation case.
• Paragraph 7 allows Parliament to amend the Fifth Schedule by ordinary law, and such an amendment is expressly not an amendment of the Constitution for the purposes of Article 368.
• Whether the Governor’s Fifth Schedule powers are exercised in his discretion or on the aid and advice of the council of ministers has never been authoritatively settled, and the practical answer has been that Governors act on ministerial advice.

The Fifth Schedule gives one office the power to disapply any law to a Scheduled Area, and the record of its use is very nearly a blank page.

Tribes Advisory Councils

• Paragraph 4 requires every state with Scheduled Areas to establish a Tribes Advisory Council of not more than twenty members, of whom about three-fourths must be representatives of the Scheduled Tribes in the state legislative assembly.
• The design defect is visible on the face of the paragraph: the Council is advisory, it is convened by the Governor, and it may consider only what is referred to it.
• The dormancy is well documented. Councils in several Fifth Schedule states have gone for years without meeting, meetings when held are formal, and reference of substantive matters — mining leases, displacement packages, forest diversion — is rare.
• The Xaxa Committee and the Bhuria Commission both recommended that Tribes Advisory Councils be given mandatory reference of specified subjects and a power of initiation, so that their consent, and not merely their availability, becomes a condition of action in Scheduled Areas.

The Sixth Schedule: Autonomous District Councils

Where the Fifth Schedule protects, the Sixth Schedule governs: it is the only place in the constitutional order where a sub-state tribal body holds real legislative, executive and judicial authority.

• The Sixth Schedule applies to the tribal areas of Assam, Meghalaya, Tripura and Mizoram, and constitutes them into autonomous districts and autonomous regions with elected District Councils and Regional Councils.
  • There are ten autonomous councils in all — three in Assam, three in Meghalaya, one in Tripura and three in Mizoram.
• Its origin is the Bordoloi Sub-Committee of the Constituent Assembly, which concluded that the hill communities of Assam needed self-government, not merely protection, because their social organisation was already political and functioning.

The powers of a District Council

• Legislative: a Council may make laws on land other than reserved forest, management of forests, use of canals and watercourses, regulation of shifting cultivation, establishment of village and town committees, appointment of chiefs and headmen, inheritance of property, marriage and divorce, and social customs.
• Judicial: Councils may constitute village councils and courts for the trial of suits and cases between parties all of whom belong to Scheduled Tribes within the district, and may hear appeals from them.
• Executive and financial: Councils may establish or manage primary schools, dispensaries, markets, ferries, fisheries and roads; assess and collect land revenue and levy taxes on land, buildings, trades and vehicles; and receive a share of royalties from mineral leases in the district.

	Fifth Schedule	Sixth Schedule
Applies to	Scheduled Areas in ten states	Tribal areas of Assam, Meghalaya, Tripura, Mizoram
Key institution	Tribes Advisory Council — advisory, nominated from MLAs	Autonomous District Council — elected
Powers	Advice; the Governor legislates by regulation	Legislative, executive, judicial and financial powers of its own
Land	Protected by transfer regulations made by the Governor	Council makes law on land other than reserved forest
Character	Protective	Self-governing

The demand to extend the Sixth Schedule to Ladakh

• Ladakh became a Union Territory without a legislature on 31 October 2019, losing the four seats it had held in the Jammu and Kashmir assembly, so an area that is roughly 97 per cent Scheduled Tribe was left with no elected legislative body at all.
• The NCST itself recommended in September 2019 that Ladakh be included in the Sixth Schedule, writing to the Union Home Minister and the Minister of Tribal Affairs.
  • The recommendation has not been acted on, which is what happens to the one function that is peculiarly the Commission’s own.
• The demand is now the central political question in the territory, pressed jointly by the Leh Apex Body and the Kargil Democratic Alliance, alongside demands for statehood, a dedicated public service commission and two parliamentary seats.
  • The Union government has negotiated through a High-Powered Committee under the Ministry of Home Affairs and conceded employment and language protections — the Ladakh Reservation (Amendment) Regulation, 2025 reserved 85 per cent of government jobs for local residents — while withholding the constitutional demand.

The One Mandate That Is Not Shared: Fifth and Sixth Schedule Consultation

• Beyond the six functions it shares with the Commission for Scheduled Castes, the NCST is additionally consulted on Fifth and Sixth Schedule matters, which makes it a distinct institution rather than a duplicate. The consultation operates at several points.
  • Declaration and alteration of Scheduled Areas under paragraph 6 of the Fifth Schedule — proposals from states to add, remove or redraw Scheduled Areas come to the Commission for examination before the President’s order issues.
  • Extension of the Sixth Schedule to new areas, and the creation, division or upgrading of autonomous councils, on which the Commission’s view is sought and which produced the Ladakh recommendation.
  • Regulations under paragraph 5(2) on land transfer, land allotment and money-lending, where the Commission is positioned to comment on whether a state’s protective regulation is adequate.
• The Commission for Scheduled Castes advises on how a community is treated; the NCST advises on how a part of India is governed, which is why this is a jurisdiction over constitutional structure and not only over the treatment of individuals.

PESA 1996: Self-Rule in Scheduled Areas

Why the 73rd Amendment made PESA necessary

• The 73rd Amendment (1992) created a uniform three-tier panchayat system for the whole country, but Article 243M(4)(b) kept Scheduled Areas out of Part IX unless Parliament extended it by law.
  • The exclusion was deliberate. A uniform panchayat model, with elections on party lines and a state-appointed secretary, would have displaced functioning tribal institutions — the traditional village council, the headman, the customary dispute forum — rather than supplemented them.
• The Bhuria Committee, chaired by Dilip Singh Bhuria, was appointed to resolve this and reported in 1995.
  • It recommended a structure with the gram sabha at the base, holding authority over natural resources, dispute resolution and community institutions, with the elected panchayat as an executive and appellate tier above it.
• The Panchayats (Extension to the Scheduled Areas) Act, 1996 came into force on 24 December 1996. It creates no institutions itself; it directs state legislatures to make panchayat law for Scheduled Areas conforming to specified principles.

What PESA requires

• State legislation must be in conformity with customary law, social and religious practices, and traditional management practices of community resources, and with customary modes of dispute resolution.
• A village is defined by habitation or a hamlet, and every village shall have a gram sabha, so the unit of self-government is the hamlet, not the revenue village.
• Every gram sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution.
• Every gram sabha shall approve the plans, programmes and projects for social and economic development before they are taken up by the panchayat, and shall be responsible for the identification and selection of beneficiaries under poverty alleviation and other programmes.
• The ownership of minor forest produce is vested in the gram sabha and the panchayats at the appropriate level.
• Beyond the five core provisions, the Act requires state law to give the gram sabha or the panchayat further powers that are frequently forgotten and are where the real economic stakes lie.
  • Consultation before land acquisition in Scheduled Areas and before the resettlement or rehabilitation of persons affected by projects.
  • Prior recommendation of the gram sabha or panchayat for grant of prospecting licences or mining leases for minor minerals, and for grant of concessions for the exploitation of minor minerals by auction.
  • Power to prevent alienation of land and to restore unlawfully alienated land of a Scheduled Tribe.
  • Control over money-lending, over minor water bodies, over village markets, and over local plans and resources including tribal sub-plans.
  • Power to enforce prohibition or regulate the sale and consumption of intoxicants.
  • Control over institutions and functionaries in all social sectors.

PESA converts the gram sabha from a body that is consulted into a body whose recommendation is a legal precondition, and that is why its implementation has been resisted.

The implementation record

• All ten Fifth Schedule states were required to amend their panchayat laws to conform, and all did, but conformity was often nominal.
  • The commonest device was to transfer PESA’s powers to the gram panchayat rather than the gram sabha, which restores the ordinary hierarchy and defeats the Bhuria design.
• The rules required to operationalise the amended laws arrived far later, and in two states have never arrived at all.
  • Andhra Pradesh, Himachal Pradesh and Rajasthan notified PESA rules in 2011 — fifteen years after the Act.
  • Maharashtra followed in 2014, Gujarat in 2017, Telangana and Chhattisgarh thereafter, and Madhya Pradesh notified its rules only in November 2022, on Janjatiya Gaurav Divas.
  • Jharkhand, the state created explicitly on a tribal claim, has produced draft rules only, and Odisha, which contains some of the most contested mining districts in the country, has not framed rules at all.
• The deeper failure is that subject laws were never harmonised with PESA.
  • The state forest, mining, excise, land revenue and money-lending acts continue in force unamended, and where they conflict with a gram sabha’s PESA power, the administration follows the subject law.
  • A forest department controls transit permits for minor forest produce whose ownership PESA vests in the gram sabha; an excise department licenses liquor shops in villages where the gram sabha has resolved on prohibition.
• Social audits and field studies have repeatedly found gram sabha resolutions manufactured on paper — approvals recorded for meetings that never met, and consent certified for projects the village opposed.
• The NCST’s 2005 mandate expressly includes measures for the full implementation of PESA, and the Commission’s own admission that it lacked the staff and funds to work that mandate until 2025 is a measure of how little institutional weight has been placed behind the Act.

The Forest Rights Act, 2006

The Forest Rights Act is the most ambitious redistributive statute India has passed since the land reforms. It rests on a single historical claim: that forest law from 1865 onwards converted communities living in forests into encroachers on their own land, and that this was a historical injustice requiring correction rather than a welfare problem requiring a scheme.

• Its full name is the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and the phrase “recognition of forest rights” is doing legal work.
  • The Act does not grant rights; it recognises and vests rights that it declares already existed and were never recorded.
  • Claims are determined not by a forest officer but by the gram sabha, with a Sub-Divisional Level Committee and a District Level Committee above it — a transfer of adjudicatory power from the bureaucracy to the village that is unique in Indian law.
• The beneficiaries are of two classes: Scheduled Tribes who reside in and depend on forests, and other traditional forest dwellers who have done so for at least three generations, defined as seventy-five years.

The categories of right

• Land title rights. A claimant may be recognised as holding title to forest land actually under his cultivation as on 13 December 2005, subject to a ceiling of four hectares.
  • The seventy-five-year, three-generation test applies to non-tribal forest dwellers; Scheduled Tribes must show residence and dependence, not three generations.
  • No new land may be brought out of forest — the Act recognises existing occupation and expressly does not authorise fresh clearing.
• Use rights. Rights of ownership, access, use and disposal of minor forest produce traditionally collected within or outside village boundaries; rights over grazing routes and pastoral areas; and the traditional seasonal resource access of nomadic and pastoralist communities.
• Relief and development rights. The Act provides for rehabilitation in cases of illegal eviction or forced displacement, and for access to basic amenities — schools, dispensaries, roads, electric lines, water — on forest land, subject to restrictions for forest and wildlife protection.
• Forest management rights. The right to protect, regenerate, conserve or manage any community forest resource which the community has traditionally been protecting for sustainable use, together with rights over sacred groves and customary religious sites.
  • The Niyamgiri hills of Odisha are the standard example: the Dongria Kondh claim to the hill rests on it being a deity and a place of worship and not only a source of livelihood.

The community forest rights provision and the consent requirement

• Section 3(1)(i) recognises the right to protect and manage community forest resources, which converts a village from a beneficiary of forest policy into its manager.
• Section 4(5) provides that no member of a forest-dwelling Scheduled Tribe or other traditional forest dweller shall be evicted from forest land until the recognition and verification process is complete.
• Read together with the 2009 circular of the Ministry of Environment and Forests, these require that forest rights be settled and the gram sabha’s consent obtained before forest land is diverted for a project.

The implementation record

• On the government’s own figures, as of 31 October 2025:
  • 51.57 lakh claims had been filed in all.
  • 25.14 lakh titles had been distributed — about 48.8 per cent of claims.
  • 18.73 lakh claims had been rejected — about 36.3 per cent.
  • 7.69 lakh claims remained pending.
• The individual and community split shows where the Act has and has not worked.
  • Of 49.44 lakh individual claims, 23.92 lakh received titles and 18.20 lakh were rejected.
  • Of only 2.13 lakh community claims, 1.22 lakh received titles and 53,160 were rejected.
• The rejection rate is the central scandal of the Act’s administration.
  • Rejections are routinely recorded without reasons communicated to the claimant and without the appeal rights the rules require, so a rejection is usually final in practice.
  • Claims are refused on technical grounds such as the absence of satellite imagery, although the rules make remote sensing evidence supplementary and not a substitute for the gram sabha’s evidence and the testimony of elders.
• Three problems recur.
  • Exclusion errors caused by distress migration — families who left the forest to survive fail the residence and cultivation tests they would otherwise satisfy.
  • Denial of community rights by reclassifying land as degraded or as belonging to a different legal category, which removes it from the Act’s reach and returns it to departmental control, and with it the water, forest and land on which the community’s economy rests.
  • Delays in relief, rehabilitation and the settlement of development rights, so that even successful claimants wait years for the entitlements the recognition was supposed to unlock.

The Wildlife First litigation and the eviction order of 2019

• The Act’s constitutional validity has been under challenge since 2008 in Wildlife First v. Union of India, brought by conservation organisations arguing that recognising rights inside forests would destroy wildlife habitat.
• On 13 February 2019 the Supreme Court, hearing the matter without effective representation from the Union government, directed the states to evict all claimants whose claims had been rejected — on the figures then before it, roughly eleven lakh households.
• After national protest the Court stayed its own order on 28 February 2019, following an application by the Union government conceding that rejections may not have followed due process, and directed the states to file affidavits on how claims had been decided.
• The stay has been extended repeatedly and the matter remains pending, so the threat is suspended rather than removed; a body holding civil court powers over records was positioned to establish how those claims had been rejected, and did not.

The Forest (Conservation) Amendment Act, 2023

• The 1980 Act was amended and renamed the Van (Sanrakshan Evam Samvardhan) Adhiniyam, and the amendment narrows the category of land to which central clearance applies.
  • Protection is confined to land notified as forest under law, and to land recorded as forest in government records on or after 25 October 1980.
  • This displaces the Supreme Court’s Godavarman ruling of 1996, which had applied the Act to all land answering the dictionary meaning of forest regardless of ownership or record.
  • The practical effect is to remove unclassed and deemed forests — much of it community-managed land in the North-East and in central India — from the clearance regime, and with it from the settlement-of-rights precondition.
• The exemptions granted are wide.
  • Land within 100 kilometres of an international border required for a strategic linear project of national importance, which covers most of the North-Eastern states and much of the western Himalaya.
  • Up to ten hectares for security-related infrastructure and up to five hectares in areas affected by left-wing extremism.
  • Small strips along rail lines and roads, zoos and safaris in forest land other than protected areas, and eco-tourism facilities.
• The objection pressed by tribal rights groups and by dissenting members of the parliamentary committee is that these exemptions bypass the Forest Rights Act’s consent requirement.
  • The amended rules of 2022 and after are silent on gram sabha consent, so a state may issue orders of diversion on central approval without the village being asked.
• The amendment is the clearest recent case of a major policy affecting Scheduled Tribes proceeding without the Commission’s consultation operating as a real check, and it is challenged before the Supreme Court, where the scope of the Godavarman definition has been argued afresh.

Land Alienation and the Samatha Judgment

Land alienation is the oldest tribal grievance in India and the one the Fifth Schedule was written to prevent. Lakhs of cases are registered in the Fifth Schedule states, a large share of the disputed land is never restored, and restoration orders are frequently defeated at the execution stage.

• Samatha v. State of Andhra Pradesh (1997) is the high-water mark of judicial protection. A voluntary organisation challenged the grant of mining leases to private companies in the Scheduled Areas of Visakhapatnam.
  • The state’s argument was that the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 barred transfer of land by a tribal to a non-tribal, but did not bind the government itself, which was not a “person” within the regulation.
  • The Supreme Court held by majority that the government’s own transfers were caught by the protective scheme, and that transfer of mining leases in Scheduled Areas to non-tribals or to private companies is void.
  • Leases could be granted to state undertakings or to cooperative societies of Scheduled Tribes, provided they observed forest and environmental law.
  • The Court further directed that at least twenty per cent of net profits from mining in Scheduled Areas be set aside as a permanent fund for local development, over and above statutory reforestation and environmental costs.
• Samatha’s afterlife is a study in judicial victories that do not hold.
  • Other states read it as an interpretation of the Andhra Pradesh regulation alone and declined to apply it; the Union sought a review and then considered amending the Fifth Schedule, which paragraph 7 permits by ordinary law.
  • The Mines and Minerals (Development and Regulation) Amendment Act, 2015, with its auction regime and its District Mineral Foundation, has largely displaced the ground on which Samatha operated, though the Foundation is a distant descendant of the twenty per cent direction.

Niyamgiri: The Gram Sabha as Decision-Maker

• Orissa Mining Corporation v. Ministry of Environment and Forests (2013) is the strongest vindication the Forest Rights Act and PESA have received, and it turns on a question of religion as much as of land.
• The state mining corporation sought to mine bauxite on the Niyamgiri hills in Odisha in a joint arrangement supplying a private alumina refinery. The Ministry had refused stage-II forest clearance; the corporation challenged the refusal.
• On 18 April 2013 the Supreme Court held that the question was not for it or for the Ministry to decide in the first instance.
  • The religious and cultural rights of the Dongria Kondh in Niyam Raja, the deity the hill embodies, were rights recognised by Section 3(1) of the Forest Rights Act as customary rights over sacred sites, and by PESA as customs and cultural identity the gram sabha is competent to preserve.
  • Whether mining would infringe those rights was therefore a matter for the gram sabhas of the affected villages, which were directed to consider both individual and community claims and to decide freely, with a judicial officer of the district present as observer.
• Between July and August 2013, all twelve gram sabhas convened — including the smallest hamlets, which had never previously been consulted about anything — voted unanimously against the project.
  • The Ministry rejected stage-II clearance in January 2014, and the project has not proceeded.
• The judgment established, in a way no statute had, that free, prior and informed consent is enforceable law in India for forest diversion affecting tribal communities, and it remains close to a solitary example.

Displacement, Rehabilitation and Land Acquisition

• Development-induced displacement is the tribal question the Commission’s 2005 mandate names and the one on which the record is worst.
  • Scheduled Tribes are about 8.6 per cent of the population and roughly 40 per cent of those displaced by dam projects, a disproportion of nearly five to one.
  • Of an estimated 2.13 crore people displaced between 1951 and 1990, about 85 lakh were tribal, and only about 21 lakh were resettled at all.
• The Narmada projects are the reference case. Displacement by the Sardar Sarovar dam fell heavily on tribal villages, and the Narmada Bachao Andolan produced the Morse Commission review, the World Bank’s withdrawal in 1993, and a Supreme Court judgment in 2000 permitting construction on rehabilitation conditions only partly met.
• Polavaram on the Godavari is the contemporary case and is squarely a Fifth Schedule problem.
  • Roughly 1.06 lakh families across nearly 400 villages face submergence, and about 80 per cent of the population of the affected mandals is Scheduled Tribe.
  • Rehabilitation has covered a small fraction of the affected families, resettlement colonies have themselves flooded, and the gram sabha consent PESA requires in Scheduled Areas was, on the evidence of the affected villages, never genuinely obtained.
• The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 was the legislative answer to this history and contains an express tribal chapter.
  • Section 41 provides that acquisition in Scheduled Areas shall be undertaken only as a demonstrable last resort, and requires the prior consent of the gram sabha or the panchayats or the autonomous district councils at all levels in Scheduled Areas.
  • Where land is acquired for an irrigation project, land for land must be provided, and affected Scheduled Tribe families resettled outside the district receive additional benefits.

Who Counts as a Scheduled Tribe

• The Constitution nowhere defines a tribe. Article 366(25) simply refers back to Article 342, so membership of a Scheduled Tribe is whatever the President’s notification says it is.
• The criteria actually applied were settled by the Advisory Committee on the Revision of the Lists, chaired by B. N. Lokur, which reported in 1965. Five tests are used:
  • Primitive traits, a distinctive culture, geographical isolation, shyness of contact with the community at large, and backwardness.
• The criteria are open to objection, and the objection is now official.
  • The vocabulary is colonial and stigmatising: “primitive” and “shyness of contact” describe communities from the outside, in the language of an administration that regarded them as objects of policy.
  • Geographical isolation is unworkable in a country covered by roads and mobile networks, and it penalises communities precisely for the contact that development produced.
• A Task Force of the Ministry of Tribal Affairs in 2014 proposed criteria based on socio-economic and educational disadvantage relative to the state population, historical rather than current isolation, a distinct language or dialect, distinctive life-cycle practices, and endogamy, assessed in the round. It has not been adopted.
• The process itself is slow and opaque. A proposal must originate with the state government, be endorsed by the Registrar General of India, be concurred in by the NCST, and then be enacted by Parliament, and it can die at any stage without reasons.
  • Inclusion demands are politically charged — the Meitei claim in Manipur, whose judicial handling contributed to the violence from 2023, is the sharpest recent instance — and exclusion demands from communities that consider a listed neighbour undeserving are equally common.
  • The Commission is a mandatory station on this route, and clearing the backlog of pending inclusion, exclusion and synonym proposals is one of the few functions where its concurrence has real legal effect.

Particularly Vulnerable Tribal Groups

• The category originates with the Dhebar Commission (1960-61), appointed under Article 339(1), which observed that development gains within the Scheduled Tribes were being captured by the larger and better-placed communities.
  • On that finding, Primitive Tribal Groups were identified from 1975, renamed Particularly Vulnerable Tribal Groups in 2006 to drop the pejorative.
  • The criteria are a pre-agricultural technology, a stagnant or declining population, very low literacy and a subsistence economy.
• Seventy-five PVTGs are identified across eighteen states and one Union Territory, ranging from a few dozen people to some lakhs.
• PM-JANMAN, launched on 15 November 2023, is the current instrument: an outlay of about Rs 24,104 crore, covering eleven interventions delivered through nine ministries — housing, roads, piped water, mobile medical units, hostels, anganwadi centres, solar electrification and connectivity among them.
• Denotified, nomadic and semi-nomadic tribes — stigmatised by the colonial Criminal Tribes Act, 1871 and denotified in 1952 — sit awkwardly across the classification, some listed as ST, some as SC, some as OBC and some nowhere.
  • The Idate Commission recommended a permanent statutory commission for them, and a Development and Welfare Board was created in 2019, but they remain outside the protections attached to scheduling, and their nomadic pattern makes forest rights claims almost impossible to prove under residence-based tests.

The Xaxa Committee

• A High Level Committee on the socio-economic, health and educational status of tribal communities was constituted by the Prime Minister’s Office in 2013 under Virginius Xaxa, and reported in May 2014.
  • Its remit covered five areas: livelihood and employment, education, health, involuntary displacement and migration, and legal and constitutional matters.
• Its findings on livelihood were that development had bypassed tribal India rather than reached it unevenly.
  • 45.3 per cent of the Scheduled Tribe population was below the poverty line in 2011-12, against a much lower national figure.
• On involuntary displacement, it recorded the tribal disproportion described above and held that the deeper injury is the destruction of a resource-based economy that cash compensation cannot reconstitute.
• On health, it found maternal and child mortality well above national levels, a higher total fertility rate, and a distinctive disease burden of malaria, tuberculosis, malnutrition and sickle cell disease that the general health system is not organised to address.
• On education, it recorded catastrophic attrition — dropout rates of the order of 70 to 85 per cent by the higher secondary stage — and identified language as the primary mechanism, since the medium of instruction is a regional language that is not the child’s mother tongue.
• On legal and constitutional matters it was sharpest.
  • PESA and the Forest Rights Act are systematically not implemented, and gram sabha resolutions are forged or manipulated to manufacture consent.
  • Criminal law is used against tribal protest, with large numbers of undertrials from tribal communities held on charges arising from resistance to displacement.
  • It recommended extending Sixth Schedule-style autonomous councils to Fifth Schedule areas, repealing laws that stigmatise denotified tribes, and reviewing the criminal cases against tribal protesters.
• Five recommendations are cited most often.
  • Increase the powers of the gram sabha in land acquisition, so that consent rather than consultation governs.
  • Vest mining rights in tribal cooperatives rather than in private companies, extending the logic of Samatha.
  • Use land already acquired but left unused for the rehabilitation of displaced tribal families, rather than acquiring more.
  • Make no provision for further big dams in tribal areas, given the record of displacement and non-rehabilitation.
  • Constitute a judicial commission to examine offences registered in the course of Naxal-related operations, given the number of tribal undertrials.
• Almost none of this has been implemented, and the Commission has not made the report’s recommendations the framework of its own reporting, which it was well placed to do.

Atrocities Against Tribal Victims

• The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 protects both communities, and the Commission monitors its working for tribal victims.
  • It defines atrocities to include forcing a person to eat or drink an offensive substance, parading a person naked, sexual assault on a woman and forcing a person to leave house or village, committed by a person who is not a member of either community against one who is.
  • Offences are cognisable and non-bailable, punishment runs from six months to five years and beyond for aggravated offences, and special courts, investigation by an officer of specified rank and relief and rehabilitation of victims are statutory obligations on the state.
• The tribal pattern of offending differs from the caste pattern, and this is where the NCST’s separate existence should tell.
  • 10,064 cases of crimes against Scheduled Tribes were registered in 2022, up more than 14 per cent on the previous year, with Madhya Pradesh, Rajasthan and Odisha recording the highest numbers.
  • A large share arises from land and forest disputes — dispossession, obstruction of access, retaliation for asserting a forest claim — rather than from ritual humiliation, and these are the cases least likely to be registered under the Act at all.
  • Conviction rates under the Act remain around a tenth of cases decided, and the number of trials pending runs into lakhs, so the deterrent effect is negligible.

The Commission’s Actual Record

• The Commission has done real work at the level of the individual case, and almost none at the level of structural change.
  • Its Ladakh recommendation of 2019 identified the right instrument years before the demand became a national issue.
• Against that, the failures are systemic.
  • Annual reports for 2018-19 to 2022-23 were never tabled in Parliament, so the constitutional accountability loop was broken for five consecutive years.
  • Complaint pendency has run to the order of five thousand cases awaiting final disposal, against an annual disposal capacity far smaller.
  • Roughly half the sanctioned posts at headquarters have gone unfilled, and the Commission has itself reported that it lacked the staff and funds to discharge its 2005 mandate.
  • The Chairperson’s office was vacant for eight months in 2023-24 and the Vice-Chairperson’s post has been vacant since 2019.
• The mismatch between mandate and capacity is the central operational fact: five members and a few dozen officers are expected to monitor forest rights administration in twenty states, PESA in ten, the Sixth Schedule in four, and atrocities across the country.
• There is a persistent argument that the Commission duplicates the Ministry of Tribal Affairs and adds little.
  • The Ministry frames and funds tribal policy and the Commission is meant to audit it; the overlap arises because the Commission has drifted into reviewing scheme implementation, which the Ministry does anyway with more data.
  • The defence is that the Ministry cannot audit itself, and that only the Commission holds civil court powers and a constitutional channel to Parliament. That defence holds only if the Commission uses those powers, and it has used them sparingly.

Structural Weaknesses

• Recommendations without force. Every output is advisory. The report-and-memorandum mechanism substitutes an obligation to explain for an obligation to comply, and even that fails when reports are not tabled.
• Appointments without insulation. No qualification, no independent selection, no security of tenure and no removal procedure, so composition is a matter of political convenience and independence a matter of personal temperament.
• Vacancy as a form of control. A body left without a chairperson for months and without a vice-chairperson for years is disabled without any formal decision to disable it.
• The complaint model against a structural problem. It is built to receive individual grievances, but tribal disadvantage is produced by land law, forest law, mining policy and project clearance, which no volume of case disposal reaches.
• Consultation that is not a condition. The duty to consult on major policy has no definition, no timeline and no sanction, so the one pre-emptive power in the design is exercised at the government’s discretion.
• Dependence on the accused. Complaints are referred for report to the district administration complained against, and the Commission has neither its own investigative cadre nor field offices in proportion to its jurisdiction.
• Absence of research. It has produced little independent study of land alienation, forest rights rejection or displacement, though it may requisition every record such a study would need.

The Reform Agenda

• Statutory footing for composition and appointment. Parliament’s power under Article 338A(2) has never been used; a law prescribing qualifications, a selection committee including the Leader of the Opposition, fixed tenure and a judicial removal procedure would convert a shell into an institution.
• Parliamentary examination of reports. The Second Administrative Reforms Commission’s proposal for a dedicated committee to examine the reports of all the equality commissions, and a statutory deadline for tabling, would restore the mechanism the Constitution intended.
• Make consultation a condition precedent. Defining major policy matters and requiring the Commission’s recorded views before a Bill or rule affecting Scheduled Areas or forest rights is finalised would give the duty content.
• An independent investigative wing, so complaints are not verified by the administration complained against.
• Extend the tribal governance structures: autonomous councils in Fifth Schedule areas, mandatory reference of specified subjects to Tribes Advisory Councils, and a clear ruling that the Governor’s Fifth Schedule powers are exercised in his own judgement.
• Fix the Forest Rights Act’s administration rather than the Act: reasoned rejection orders, a real appeal, a bar on District Level Committees overturning gram sabha findings without hearing, and a national drive on community forest resource rights.
• Revise the scheduling criteria on the lines the 2014 Task Force proposed, and clear the backlog of inclusion and exclusion proposals with reasons recorded.

Design and Practice

The Commission’s difficulty is not that it was designed badly for its stated purpose. It was built as a watchdog with the eyes of a court and the voice of an adviser, and it does what such a body can do. The difficulty is that the tribal question is not one of monitoring safeguards but of who controls land, forest and mineral wealth.

• The Fifth Schedule, PESA and the Forest Rights Act between them contain enough legal power to transform tribal India, and Niyamgiri demonstrated it once.
  • What is missing at every point is not a provision but an actor with the standing and the will to enforce it — a Governor who uses paragraph 5, a state that harmonises its subject laws with PESA, a district committee that respects a gram sabha’s finding.
• The pattern is consistent across the whole structure: the protective law is strong and the enforcing institution is weak, and the gap between them is where tribal India actually lives.
  • The Governor has legislative power over Scheduled Areas and does not use it; the Tribes Advisory Council exists constitutionally and does not meet; the gram sabha has consent powers and is handed a resolution to sign; and the Commission has civil court powers and writes letters.

“We should judge results, not by statistics or the amount of money spent, but by the quality of human character that is evolved.” — Jawaharlal Nehru

• Judged by that fifth principle, the decades since the Panchsheel have produced an elaborate architecture of rights and a community still displaced and dispossessed at rates no other group in India faces.

The tribal safeguards do not fail for want of law; they fail because every institution built to enforce them was built without the power to compel.