For most of India, codified statute has displaced custom. For the country's Scheduled Tribes, the Constitution does the opposite: it deliberately holds general law at bay so that customary law may continue to govern marriage, succession, land and village governance. This protection is built into the constitutional text itself — the Fifth and Sixth Schedules under Article 244, the recognition of "custom or usage" as law under Article 13(3)(a), and the express exclusion of Scheduled Tribes from the Hindu Code statutes. Yet the same Constitution guarantees equality. The tension between protecting tribal custom and curbing its discriminatory edges runs through the entire case law, from Madhu Kishwar to Kamla Neti. This chapter maps that architecture for judiciary and CLAT-PG aspirants. For the foundational ideas, begin with the Customary Law hub and the introduction to custom.
Custom as Law Under Article 13(3)(a)
The starting point for any discussion of tribal custom is that, in Indian constitutional law, custom is not a sub-legal or merely social phenomenon — it can be "law" in the fullest sense. Article 13(3)(a) defines "law" to include "any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law." The deliberate inclusion of custom means two things at once. First, a custom that satisfies the essentials of a valid custom — antiquity, continuity, reasonableness, certainty and conformity with public policy — operates with the force of law and is enforceable by courts. Second, because it is "law" within Article 13, any such custom that is inconsistent with the fundamental rights in Part III is to that extent void.
This dual character is the central fault line of tribal customary law. The Constitution simultaneously elevates custom to the status of law and subjects it to the discipline of equality. A point of contrast worth noting for examinations is the personal-law line. In State of Bombay v. Narasu Appa Mali (AIR 1952 Bom 84), a Division Bench of Chagla CJ and Gajendragadkar J held that uncodified personal law is not "laws in force" under Article 13 and therefore escapes fundamental-rights scrutiny — reasoning expressly because custom is a deviation from personal law, not personal law itself. Tribal custom, however, squarely falls within "custom or usage" in Article 13(3)(a), so the Narasu shield does not protect it. Tribal custom is therefore directly testable against Articles 14, 15 and 21.
Article 244 and the Twin-Schedule Scheme
The principal vehicle for constitutional recognition of tribal autonomy is Article 244, which channels the administration of tribal regions into two distinct constitutional regimes. Article 244(1) provides that the provisions of the Fifth Schedule shall apply to the administration and control of Scheduled Areas and Scheduled Tribes in any State other than Assam, Meghalaya, Tripura and Mizoram. Article 244(2) provides that the provisions of the Sixth Schedule shall apply to the administration of the tribal areas in those four north-eastern States.
The drafting choice reflects a historical and sociological judgment by the Constituent Assembly. The tribes of peninsular and central India — Gonds, Bhils, Santhals, Hos, Oraons — live interspersed with non-tribal populations and were thought to need protective administration within the ordinary State structure; hence the Fifth Schedule's model of gubernatorial oversight and protective legislation. The tribes of the north-east, by contrast, lived in compact, distinct communities with strong indigenous self-governance traditions; hence the Sixth Schedule's far more autonomous model of self-legislating District and Regional Councils. Both schemes share a single underlying purpose: to insulate tribal land, custom and community from the disruptive pressure of general law and market forces. Custom is the connective tissue of both. As a foundation, recall the broader kinds of custom — local, general, family and class — because tribal custom is almost always local custom operating within a defined territory or community.
The Fifth Schedule: Protective Administration
The Fifth Schedule applies to ten States with Scheduled Areas: Andhra Pradesh, Telangana, Odisha, Jharkhand, Chhattisgarh, Madhya Pradesh, Rajasthan, Gujarat, Maharashtra and Himachal Pradesh. Its architecture is protective rather than autonomist. Three features matter for the customary-law student.
First, executive power. Paragraph 3 obliges the Governor to report annually to the President on the administration of Scheduled Areas, and the executive power of the Union extends to giving directions to the State. Second, the Tribes Advisory Council under Paragraph 4 — a body of Scheduled Tribe members in each State with such areas — advises on matters of welfare and advancement referred to it by the Governor. Third, and most importantly for custom, Paragraph 5 confers a remarkable legislative power on the Governor: the Governor may, by public notification, direct that any particular Act of Parliament or of the State Legislature shall not apply to a Scheduled Area, or shall apply only with specified modifications, and may make regulations for the peace and good government of the area — in particular to prohibit or restrict the transfer of land by or among members of the Scheduled Tribes and to regulate money-lending. This is the constitutional engine through which general statutes can be switched off and replaced by, or harmonised with, tribal custom. It is why tribal land-alienation laws and customary tenures survive in the teeth of ordinary transfer law.
The Sixth Schedule: Autonomous Councils and Customary Justice
The Sixth Schedule, applicable to Assam, Meghalaya, Tripura and Mizoram, creates a genuinely autonomist order. It establishes Autonomous District Councils and Regional Councils, each a body corporate with up to thirty members, vested with legislative, executive, financial and — crucially — judicial powers. For the student of custom, the heart of the Sixth Schedule is its embedding of customary law into the formal legal order.
Paragraph 3 empowers a District or Regional Council to make laws on enumerated subjects including the allotment, occupation and use of land, management of unreserved forests, regulation of jhum (shifting cultivation), inheritance of property, marriage and divorce, and social customs — the very subjects that constitute personal and customary law. Paragraph 4 authorises the Council to constitute village councils or courts to try suits and cases between parties all of whom belong to Scheduled Tribes within the area, and these courts apply tribal customary law. The Council may even be given powers under the Code of Civil Procedure and the Code of Criminal Procedure for the trial of certain offences. In Pu Myllai Hlychho v. State of Mizoram (2005) 2 SCC 92, the Supreme Court explained that the Sixth Schedule evolved a separate scheme for tribal-area administration through District and Regional Councils with their own legislative, taxing and judicial powers, while clarifying that the Schedule is not a "constitution within the Constitution" and that the Governor remains bound by the cabinet system and Articles 154 and 163. The Sixth Schedule thus does what no other part of the Constitution does so explicitly: it institutionalises customary adjudication as a recognised tier of the Indian judicial system.
Statutory Exclusion: Section 2(2) of the Hindu Code Statutes
Constitutional recognition of tribal custom is reinforced by deliberate statutory abstention. The codifying Hindu statutes of the 1950s carved Scheduled Tribes out of their own operation. Section 2(2) of the Hindu Marriage Act, 1955 and the identically worded Section 2(2) of the Hindu Succession Act, 1956 each provide that nothing contained in the Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
The effect is that, absent a notification, a Scheduled Tribe member is governed in matters of marriage, divorce and intestate succession not by the Hindu Code but by the custom of the tribe. This is the statutory counterpart of the constitutional scheme: where the Constitution holds general administration at bay, the Hindu Code holds itself at bay. It is also the precise pressure point at which the equality challenge arises, because much tribal succession custom is patrilineal and excludes daughters and widows. The student should hold two ideas together — that this exclusion is an act of respect for tribal autonomy, and that it is simultaneously the mechanism by which discriminatory custom is allowed to persist. The interaction of statute and custom here is the tribal analogue of the broader theme covered in custom as a source of Hindu law.
Madhu Kishwar v. State of Bihar: Custom Meets Equality
The leading authority on the collision between tribal succession custom and constitutional equality is Madhu Kishwar v. State of Bihar (AIR 1996 SC 1864; (1996) 5 SCC 125). Madhu Kishwar, editor of the journal Manushi, joined by tribal women of the Ho tribe including Sonamuni and Muki Dui, challenged Sections 7, 8 and 76 of the Chota Nagpur Tenancy Act, 1908 and the underlying customary law of succession, which channelled tenancy holdings down the male line and excluded female heirs. The petitioners argued the scheme discriminated solely on the ground of sex and violated Articles 14, 15(1) and 21.
A three-judge Bench (Kuldip Singh, M.M. Punchhi and K. Ramaswamy JJ) splintered in its reasoning. The majority (Punchhi J, with Kuldip Singh J) declined to strike down Sections 7 and 8 as ultra vires, reasoning that to do so would create a legislative vacuum and judicial chaos across tribal tenures, and that the framing of a substitute scheme was for the legislature. Instead, the majority crafted a narrower, livelihood-based protection: invoking the right to livelihood under Article 21, it held that the exclusive right of male succession in the Act would be suspended so long as the female dependants — daughters, widows, sisters — of the last male holder needed the holding for their livelihood, allowing them to remain in occupation and enjoy the land. K. Ramaswamy J, writing separately, took the more transformative view that the customary exclusion of tribal women offended Articles 14, 15 and 21 and that principles analogous to the general law of succession (the Hindu Succession Act) ought to be applied to give tribal women a real share. The case is therefore studied as the high-water mark of judicial caution: equality was vindicated in principle but the protective customary regime was preserved, with relief read in through livelihood rather than through outright invalidation.
Kamla Neti v. Special Land Acquisition Officer: The Modern Restatement
More than a quarter-century after Madhu Kishwar, the Supreme Court returned to the same dilemma in Kamla Neti (Dead) through LRs v. Special Land Acquisition Officer, (2023) 3 SCC 528; 2022 SCC OnLine SC 1694, decided on 9 December 2022 by M.R. Shah and Krishna Murari JJ. A daughter of a deceased Scheduled Tribe landholder in Odisha claimed a share, on survivorship, in the compensation for acquired tribal land. The Court held that, because Section 2(2) of the Hindu Succession Act excludes Scheduled Tribes, a female member of a Scheduled Tribe is not entitled to any right of survivorship under that Act, and absent proof of a custom conferring such a right she could not succeed on that basis.
What gives the case its importance is the Court's accompanying observation on equality. The Bench remarked that there appeared to be no rational basis for denying a tribal daughter the equal share that a non-tribal daughter now enjoys after the 2005 amendment to the Hindu Succession Act, and that the exclusion appeared to offend the right to equality under Article 14. The Court accordingly directed the Central Government to examine the matter and consider amending Section 2(2) of the Hindu Succession Act so as to withdraw the exemption insofar as it denies tribal women parity in intestate succession. Kamla Neti thus restates the Madhu Kishwar position — custom prevails for now, statute does not reach tribal succession — while sharpening the constitutional discomfort and pressing the political branches to act.
PESA, 1996: Statutory Recognition of Customary Self-Governance
Parliament gave statutory voice to tribal custom through the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA), enacted on 24 December 1996. PESA extends Part IX of the Constitution (Panchayats) to the Fifth Schedule areas but with significant exceptions and modifications designed to anchor local governance in custom. Section 4(a) declares that State legislation on Panchayats in the Scheduled Areas shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources. Section 4(b) recognises a habitation or group of habitations managing its affairs in accordance with traditions and customs as a "village," and Section 4(d) makes the Gram Sabha — the assembly of the whole village community — competent to safeguard and preserve the traditions, customs and cultural identity of the people and community resources.
PESA further empowers the Gram Sabha and Panchayats to be consulted before land acquisition, to manage minor water bodies, to own and control minor forest produce, to prevent and restore unlawful alienation of tribal land, and to enforce prohibition. By making custom the governing standard for self-rule and vesting decisive authority in the customary village assembly, PESA converts the protective abstractions of the Fifth Schedule into a working framework of customary self-governance. It is the clearest statutory affirmation that, in the Scheduled Areas, the community's own traditions are the primary source of public order.
The Forest Rights Act, 2006 and Customary Forest Use
Complementing PESA, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (the Forest Rights Act, or FRA) recognises and vests forest rights that had long been treated as encroachment. Section 3 enumerates the forest rights of forest-dwelling Scheduled Tribes and other traditional forest dwellers, including the right to hold and live on forest land under individual or common occupation, rights of ownership and access to collect, use and dispose of minor forest produce traditionally collected within or outside village boundaries, and community tenures of habitat and habitation for primitive tribal groups.
Two clauses make the FRA a customary-law statute in substance. Section 3(1)(d) recognises "other community rights of uses or entitlements such as fish and other products of water bodies, grazing... and traditional seasonal resource access of nomadic or pastoralist communities." Section 3(1)(i) recognises the right to protect, regenerate, conserve or manage any community forest resource which the community has been traditionally protecting and conserving for sustainable use within its traditional or customary boundaries. Section 3(1)(k) recognises any other traditional right customarily enjoyed, excluding hunting. By tying legal entitlement to traditional and customary use, the FRA gives custom a direct evidentiary and substantive role in defining property and resource rights — a striking instance of custom functioning, in the language of the definition and nature of custom, as a source of enforceable legal right.
Customary Tenure and Restrictions on Land Alienation
The most jealously guarded zone of tribal custom is land. Across the Scheduled Areas, special tenancy and land-transfer laws — the Chota Nagpur Tenancy Act, 1908, the Santhal Parganas Tenancy Act, 1949, the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 and similar regulations made under Paragraph 5(2) of the Fifth Schedule — restrict or prohibit the transfer of tribal land to non-tribals and preserve customary tenures. The constitutional foundation for these restrictions is twofold: the regulation-making power of the Governor under the Fifth Schedule, and the protective classification permitted by Article 15(4) and the welfare obligations under the Directive Principles.
The Supreme Court has consistently upheld such restrictions. In Lingappa Pochanna Appelwar v. State of Maharashtra (AIR 1985 SC 389), the Court upheld Maharashtra's law restoring to tribals lands alienated to non-tribals, treating it as a measure protecting a vulnerable community and consistent with the constitutional scheme of tribal protection. In Samatha v. State of Andhra Pradesh (AIR 1997 SC 3297; (1997) 8 SCC 191), a three-judge Bench gave the protective scheme its most expansive reading, holding that the prohibition on transfer of land in Scheduled Areas extends to transfers by the Government itself, so that mining leases of Scheduled-Area land to non-tribal private parties were impermissible — a decision rooted in the Fifth Schedule, Article 244 and the policy of preserving tribal land for tribal communities. These cases show that customary and statutory protection of tribal land operate together as a constitutional bulwark against dispossession.
Proving Tribal Custom and Its Constitutional Limits
Recognition does not dispense with proof. A litigant who asserts a tribal custom — whether of succession, marriage or land — must plead and prove it, and the custom must satisfy the ordinary essentials of a valid custom: it must be ancient, continuous, certain, reasonable and not opposed to public policy or express statute. The point recurs in the case law on tribal polygamy: courts have held that the exemption in Section 2(2) of the Hindu Marriage Act is not a blanket licence, and a tribal litigant seeking to justify, say, a second marriage must affirmatively establish a traditional custom permitting it rather than merely assert tribal status.
The constitutional limit is equality. Because tribal custom is "law" under Article 13(3)(a), a custom that is unreasonable or that discriminates contrary to Part III can be refused enforcement. The jurisprudence has so far trodden carefully — Madhu Kishwar and Kamla Neti preserved the protective regime while reading in livelihood relief and pressing for legislative reform — but the doctrinal hook for striking down a genuinely discriminatory tribal custom plainly exists. The result is a layered test: the custom must first qualify as valid custom (antiquity, certainty, reasonableness), and must then survive the equality and non-arbitrariness scrutiny of Articles 14 and 15. This is the distinctive constitutional discipline that tribal custom bears and that ordinary uncodified personal law, after Narasu Appa Mali, has so far escaped.
Synthesis: The Constitutional Bargain
The recognition of tribal customary law can be summarised as a deliberate constitutional bargain. The Constitution and its statutes withdraw general law from the tribal sphere — through Article 244 and the Fifth and Sixth Schedules, through Section 2(2) of the Hindu Code statutes, through the Governor's notification power, through PESA and the Forest Rights Act — and put custom in its place as the governing law of marriage, succession, land and self-rule. In exchange, custom is brought within Article 13(3)(a) and made answerable to the fundamental rights, so that its discriminatory edges remain constitutionally vulnerable even where, for reasons of caution and federal comity, the courts have stopped short of invalidation.
For an examination answer, organise the topic along three axes: the structural recognition (Article 244, Fifth and Sixth Schedules, autonomous councils and customary courts under Pu Myllai Hlychho); the statutory recognition and abstention (Section 2(2) Hindu Code, PESA Sections 4(a)-(d), FRA Section 3); and the judicial mediation of custom and equality (Madhu Kishwar, Kamla Neti, Samatha, Lingappa Pochanna). Anchored to Article 13(3)(a) as the conceptual hinge, these three strands give a complete and defensible account of how the Indian Constitution recognises — and disciplines — tribal customary law. For the wider doctrinal setting, revisit the Customary Law hub and the comparison with custom as a source of Muslim law.
Frequently asked questions
What is the difference between the Fifth and Sixth Schedules of the Constitution?
Both flow from Article 244. The Fifth Schedule (Article 244(1)) governs Scheduled Areas and Scheduled Tribes in ten States outside the north-east through a protective model — gubernatorial oversight, a Tribes Advisory Council and the Governor's power to switch off or modify general laws. The Sixth Schedule (Article 244(2)) applies to Assam, Meghalaya, Tripura and Mizoram and is far more autonomist, creating Autonomous District and Regional Councils with their own legislative, executive and judicial powers, including customary courts.
Does the Hindu Succession Act apply to Scheduled Tribes?
No, not by default. Section 2(2) of the Hindu Succession Act, 1956 excludes members of any Scheduled Tribe (as defined in Article 366(25)) unless the Central Government notifies otherwise. In Kamla Neti v. Special Land Acquisition Officer (2022) the Supreme Court held that a tribal woman therefore has no right of survivorship under the Act, and urged the Centre to amend the exclusion to give tribal daughters equal succession rights.
Is tribal custom subject to fundamental rights?
Yes. Because Article 13(3)(a) defines "law" to include "custom or usage having... the force of law," a valid tribal custom is law and can be struck down to the extent it violates Part III. This contrasts with uncodified personal law, which State of Bombay v. Narasu Appa Mali (AIR 1952 Bom 84) held to be outside Article 13. Tribal custom is therefore directly testable against Articles 14, 15 and 21.
What did Madhu Kishwar v. State of Bihar decide?
In Madhu Kishwar v. State of Bihar (AIR 1996 SC 1864), tribal women challenged the male-line succession scheme of the Chota Nagpur Tenancy Act, 1908. The majority (Punchhi and Kuldip Singh JJ) declined to strike down Sections 7 and 8 but, invoking the right to livelihood under Article 21, suspended the exclusive male right so long as female dependants of the last male holder needed the land. Ramaswamy J wrote separately, favouring application of general succession principles to give tribal women a real share.
How does PESA recognise tribal customary law?
The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 requires (Section 4(a)) that State Panchayat laws in Scheduled Areas be in consonance with customary law and traditional resource-management practices, treats a customarily self-managing habitation as a "village" (Section 4(b)), and empowers the Gram Sabha to safeguard the community's traditions, customs and resources. It thus makes custom the governing standard for tribal self-governance.
Can tribal land be freely sold to non-tribals?
Generally no. Under regulations made through the Governor's power in Paragraph 5(2) of the Fifth Schedule and special tenancy laws, transfers of tribal land to non-tribals are restricted or prohibited. In Samatha v. State of Andhra Pradesh (AIR 1997 SC 3297) the Supreme Court held that even Government grants of Scheduled-Area land — such as mining leases to non-tribal private parties — fall within the prohibition, reinforcing the constitutional protection of tribal land.