Re-visiting the Scheduled Areas (Part-B States) Order, 1950: Constitutional Authority, Judicial Scrutiny and Contemporary Challenges

Re-visiting the Scheduled Areas (Part-B States) Order, 1950: Constitutional Authority, Judicial Scrutiny and Contemporary Challenges

1. Introduction

The Scheduled Areas (Part-B States) Order, 1950 (“1950 Order”) is a cornerstone in the constitutional architecture devised to protect the interests of Scheduled Tribes in the territories that formerly comprised Part-B States under the Constitution of India, 1950. Promulgated by the President in exercise of powers under paragraph 6(1) of the Fifth Schedule, the 1950 Order delineated specific tracts—predominantly forested and mineral–rich—as “Scheduled Areas”. The special status of such Areas triggers a differentiated legal regime encompassing restrictions on land transfers, customised administration, and enhanced tribal self-governance.

Seven decades later, the legal and socio-economic implications of the 1950 Order continue to reverberate through litigation on land alienation, environmental clearances, and electoral reservations. This article undertakes a doctrinal and jurisprudential analysis of the 1950 Order, interrogating its constitutional underpinnings, scope for presidential modification, and judicial interpretation, while situating current disputes within this continuum.

2. Constitutional & Statutory Framework

2.1 Fifth Schedule and Presidential Power

Paragraph 6 of the Fifth Schedule authorises the President to declare, alter, increase, rectify, or rescind Scheduled Areas, subject to consultation with the Governor concerned (para 6(2)(d)). The proviso “save as aforesaid” entrenches the immutability of an initial declaration except through the modalities enumerated in sub-paragraph 2.[1]

2.2 Interface with Protective Legislation

  • Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (“Regulation 1/1959”) – restricts land transfers to non-tribals.[2]
  • Forest (Conservation) Act, 1980 – mandates central approval for diversion of forest land in Scheduled Areas, as reinforced in Orissa Mining Corpn. v. MoEF (2013).[3]
  • Panchayats (Extension to Scheduled Areas) Act, 1996 (“PESA”) – extends Part IX with modifications, upheld in Union of India v. Rakesh Kumar (2010).[4]

3. Genesis and Scope of the 1950 Order

3.1 Historical Context

Prior to the Constitution, tribal tracts in the Hyderabad, Mysore and other princely states were governed by special regulations such as the Tribal Areas Regulation, 1359 F (Hyderabad). The Constituent Assembly, recognising similar vulnerabilities, embedded the Fifth Schedule to ensure continuity of protection upon integration of these territories. Consequently, the inaugural Presidential Orders of 23 January 1950 (Part-A States) and 7 December 1950 (Part-B States) codified Scheduled Areas for the restructured polity.[5]

3.2 Operative Clauses

The 1950 Order lists taluks and villages for each Part-B State, notably declaring “all villages of Paloncha Taluk of Warangal District except six enumerated villages” as Scheduled Areas (Para 13(i)). Clause 2 incorporates post-States Reorganisation Act, 1956 territorial readjustments by a deeming fiction, as interpreted in Bankevichandra Patel v. State of Maharashtra (2005).[6]

4. Presidential Power of Modification: Judicial Exposition

4.1 Validity of Rescission and Redefinition

In Amarendra Nath Dutta v. State of Bihar (1982) the Patna High Court sustained Constitution Order 109 of 1977, whereby the President rescinded earlier Orders and re-defined Scheduled Areas in Bihar, Gujarat, Madhya Pradesh and Orissa. The Court emphasised that paragraph 6(2)(d) expressly empowers such rescission after gubernatorial consultation; hence the “non-variation” bar in paragraph 6(2) is inapplicable.[7]

4.2 Contours of Consultation

Consultation with the State Governor is mandatory but not justiciable on adequacy, as noted by the Jharkhand High Court in Col. Lal Jyotindra Dev v. Union of India (2016). The Court refused to invalidate a 2007 notification absent demonstrable procedural impropriety.[8]

5. Land Transfers and Resource Exploitation within Scheduled Areas

5.1 State Ownership v. Tribal Protection – Samatha Dialectic

In Samatha v. State of A.P. (1997) the Supreme Court held that the expression “person” in Regulation 1/1959 did not include the State, thus permitting leases of state-owned land to non-tribals.[9] The judgment, while preserving executive discretion, underscored that such leases remain subject to forest clearance norms and the overarching mandate of distributive justice.

5.2 Environmental Clearances – Reinforcing Tribal Veto

The Orissa Mining Corporation verdict (2013) prioritised consent of Gram Sabhas under the Forest Rights Act in bauxite mining proposals, signalling that even where the State enjoys proprietary rights (per Samatha), exploitation is contingent on statutory safeguards.[10]

5.3 Contemporary Village-Level Disputes

Recent writ petitions before the Telangana High Court (Banne Rambabu, Keesari Jaya Reddy, Keesari Satyanarayana Reddy, 2024) challenge notices under Regulation 1/1959 on the ground that Chaparalapalle village is not within the Schedule of the 1950 Order. Petitioners rely on a 1950 Hyderabad Land Revenue notification, whereas respondents invoke the earlier tribal-area notification of 16-11-1949 recognised by Division Bench precedent in Mandava Rama Krishna (2014).[11] The dispute epitomises the enduring evidentiary significance of the 1950 Order and its antecedents in land-alienation litigation.

6. Doctrinal Issues and Unresolved Questions

6.1 Doctrine of Sub Silentio and Precedential Value

The Andhra Pradesh High Court in Mandava Rama Krishna critiqued earlier single-judge rulings (Koya Brahmanandam) as sub silentio, emphasising that determinations on Scheduled-Area status demand rigorous engagement with the 1950 Order and pre-constitutional regulations. This approach fortifies legal certainty across tribal land jurisprudence.[12]

6.2 Harmonising Developmental Imperatives and Tribal Autonomy

Judicial outcomes juxtaposing Samatha (development-centric) and Orissa Mining (rights-centric) illustrate an evolving equilibrium. Any presidential alteration of Scheduled Areas post-1950 must therefore be appraised not only for procedural validity but for conformity with Articles 21, 244 and 338A, read with international norms on indigenous peoples.

7. Conclusion

The Scheduled Areas (Part-B States) Order, 1950 remains a living instrument that both anchors tribal land security and interfaces dynamically with environmental, mining and governance statutes. Courts have generally upheld the breadth of presidential power to redefine Scheduled Areas, yet insist on adherence to consultative prerequisites. Simultaneously, the judiciary has reinforced protective legislation—Regulation 1/1959, the Forest Rights Act and PESA—lest developmental activities erode the fabric of tribal life.

Future controversies are likely to pivot on (i) evidentiary proof of an area’s inclusion in the 1950 Schedule vis-à-vis subsequent territorial realignments, and (ii) the reconciliation of state-led resource utilisation with participatory consent regimes. Robust archival research, meticulous statutory interpretation, and nuanced balancing of constitutional values will remain indispensable to adjudicating such disputes.

Footnotes

  1. Fifth Schedule, Constitution of India, para 6.
  2. Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (Reg. 1/1959).
  3. Orissa Mining Corporation Ltd. v. Ministry of Environment & Forests, (2013) 6 SCC 476.
  4. Union of India v. Rakesh Kumar, (2010) 4 SCC 50.
  5. See Gundla Venkateswara Rao v. District Collector, 1983 SCC OnLine AP 127.
  6. Bankevichandra M. Patel v. State of Maharashtra, Bombay HC, 2005.
  7. Amarendra Nath Dutta v. State of Bihar, Patna HC, 1982.
  8. Col. Lal Jyotindra Dev v. Union of India, Jharkhand HC, 2016.
  9. Samatha v. State of A.P., (1997) 8 SCC 191.
  10. Supra note 3.
  11. Banne Rambabu v. State of Telangana, Telangana HC, 2024; Keesari Jaya Reddy, Keesari Satyanarayana Reddy, Telangana HC, 2024.
  12. Mandava Rama Krishna v. State of A.P., (2014) 6 ALT 636.