ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Governors and the Fifth Schedule

Failing the Constitutional Mandate

Virginius Xaxa (virg1978@gmail.com) is a visiting professor at the Institute for Human Development, Delhi.

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The Constitution provides, in its PartX, the provision for the Fifth and Sixth Schedules. Article 244(1) refers to provisions under the Fifth Schedule and Article 244(2) provides those under the Sixth Schedule. The provision of the Fifth Schedule concerns the administration and control of the scheduled areas and Scheduled Tribes (STs) in any state except the tribal areas of Assam, Meghalaya, Mizoram and Tripura which are administered by the provisions of the Sixth Schedule.

The overriding control of the union over the administration of the scheduled areas and the welfare of the STs has also been emphasised in Article 339. The Fifth Schedule was in force in nine states of India until the bifurcation of Andhra Pradesh(AP), which raises the number to 10. The states with scheduled areas areAP, Chhattisgarh, Gujarat, Himachal Pradesh (HP), Jharkhand, Madhya Pradesh(MP), Maharashtra, Odisha, Rajasthan and Telangana. The notification of an area as scheduled areas takes place through the presidential order, and the broad criteria adopted for such notification are: a numerical preponderance of tribal population, possibility of compact administrative unit, and the relative social and economic backwardness of the people/area. The largest administrative unit forming the scheduled areas has been the district and the lowest the cluster of villages in the block. Most of the districts form scheduled areas only partially.

The critical provisions of the Fifth Schedule in regard to administration and control revolve around three crucial functions of the governors. The governors are required to submit annual reports to the President on the administration of scheduled areas in the state, and the President is also required to give direction to the state in regard to the administration. The governor is bestowed with special powers not to extend any act of Parliament and state legislature to scheduled areas that are detrimental to the interest and protection of the STs or extend it with such exception and modification as they may deem appropriate. Finally, the governor has the power to make regulations for peace and good governance of the scheduled areas. In making such regulations, they are expected to abide by the advice of the Tribes Advisory Council.

These constitutional provisions, theoretically at least, seem to suggest to the world at large that they have been adopted in the interests of the tribal people. However, the ground reality tells us how hollow these provisions are. The mandatory annual report that is submitted to the President has been grossly neglected by the concerned people, including the President. As and when such reports have been submitted (few and far in between), they have carried more information about the governments’ routine development activities than real issues and problems faced by the tribal population. Some of the real issues that tribal populations in the Fifth Schedule are facing are issues of development-induced displacements and the consequences arising from it. Displacement of tribal population from the sites of large infrastructure projects, such as for dams and irrigation, industries and mineral exploitation, without any adequate rehabilitation and resettlement programmes has been a routine matter of the government activities. Between 1951 and 1990, a total of 21.3 million people are estimated to have been displaced inAP, Bihar, Gujarat, Maharashtra,MP, Rajasthan and Odisha alone. Of this, 8.54 million (40%) are stated to be tribes. However, only 2.12 million (24.8%) were resettled. There has been large-scale alienation of land from the tribes to non-tribes despite the existence of laws preventing such alienation. As per the information available with the Ministry of Rural Development in January 1999, 4,65,000 cases of alienation of tribal land covering an area of 917 thousand acres had been registered in the states ofAP, Assam, Bihar/Jharkhand, Gujarat,HP, Karnataka,MP/Chhattisgarh, Maharashtra, Odisha, Rajasthan and Tripura. With the exception of Assam, Tripura and Karnataka, these states fall in the Fifth Schedule areas.

Developmental Deficits

The scheduled areas have large deficits of educational institutions of primary, upper primary and higher secondary levels. The simplest denominator of problems such as these is literacy rate, which stands lower than the national tribal average of 59% exceptHP, Maharashtra, Gujarat and Chhattisgarh. However, even the latter fell far short of the national literacy rate of 73%. The only exception isHP. The areas are also marked by poor health indicators. Malnutrition is pervasive, resulting in high maternal, child and under five mortality rate. In fact, all Fifth Schedule area states with one exception had far higher less-than-five mortality rates than the tribal average of 95.7. The large shortfall of primary and community health centres, including health personnel is another indicator of health-related problems in scheduled areas. The land and forests are integral parts of tribal economic, social and cultural lives. A large volume of their everyday food intake comes from the forests. In post-independence India, there have been tight restrictions on tribal people who find it difficult to access forest resources. On top of that, they have been subjected to everyday humiliation and harassment, including physical violence by the forest department. Various constraints to which the tribals have been subjected to, have led the latter to develop a deep sense of alienation and anger against the state.

Manmohan Singh, the former Prime Minister has described the issue plaguing the Fifth Schedule area as the greatest internal security problem in the country. This observation was made in the growing presence of Maoist activity in the scheduled areas. The prolonged conflict between the state and the Maoists seems to have ravaged the areas under reference and has led to unprecedented human misery, which has been going on for years. Tribal women have been at the receiving end of the excess occurring in the conflict zone. For tribals, let alone bringing the culprit to book, even filing of the first information report remains a distant dream. A large number of tribal people are languishing in jails without committing any crime and without trials being initiated. Where people have been asserting their constitutional and legal entitlements such as in Jharkhand, they are being framed under sedition charges and sent to jails. Notwithstanding the prevalence of such situations, neither has there been submission of annual reports nor discussion of such critical issues when the reports are submitted. The above problems have been compounded by extension of laws enacted by Parliament and the state legislatures and rules and regulations framed by the governments.

It is important to note that the governors, as referred above, have been bestowed with the power to extend or not to extend, or extend with modification any law and regulation passed by Parliament and the state legislature. Yet, the governors have never bothered to apply their minds as to the bearing these would have on the tribes. Needless to say, a large number of legislations and rules/regulations have had disastrous consequences on the tribes. Often, there is conflict between laws enacted for protection and safeguarding the interests of the tribes and general laws, which are contrary to laws safeguarding the tribal interest. In such cases, the former has been privileged over the latter, though the latter are special laws emanating from the letter and spirit of the constitutional provision. The various forest-related legislations such as the wildlife sanctuary and the forest conservation acts are good examples. They have adversely affected the tribal population leading to their eviction or threat of eviction from time to time.

Role of the Governors

On the role of the governors, there is a unanimous view that they are bound by the advice of the council of ministers. This makes their role, to ensure security and protection of tribal people from scheduled areas, quite limited and ineffective. This has implication from the very efficacy of Articles 244(1) and 244(2). If governors of the states with scheduled areas function in the same way as the governors of the states without scheduled areas, the provision of the Fifth Schedule is meaningless. In other words, the governors in Fifth Schedule areas have discretionary powers in the same sense as the governors of provinces with partially excluded areas had during the colonial rule. It may be noted that the Government of India Act, 1935, introduced provincial autonomy and elected government. The act brought the excluded and partially excluded areas, that it has introduced directly under the administration of the governor of the province. The excluded areas were kept outside the ambit of the provincial autonomy and the governor administered the territory on behalf of the governor general. However, the partially excluded areas were placed under the jurisdiction of the provincial government, but the governors were to use their judgment and discretionary powers if the laws and rules brought by the provincial government should apply to partially excluded areas or not. This is exactly the arrangement the Fifth Schedule of the Constitution provides. Laws and rules were not automatically extended to partially excluded areas. They were extended after the governor exercised his judgment and discretionary power.

For long, the tribal intelligentsia, legal experts and activists have been raising their voices against the violation of the Fifth Schedule provision. However, neither the union government nor the state governments ever took these voices of social vigilance seriously, went with affairs of the administration and business as usual. Fortunately, the matter came to a head-on at the conference of the governors in 2008. Following this, former President of India A P J Abdul Kalam attended the meeting and advised for clarity on the matter. This resulted in the 15-page legal opinion of the attorney general, which was passed to governors of states with scheduled areas in 2010 by then home minister, P Chidambaram to apprise them of their powers. The key points, the attorney general, G E Vahanvati makes are this. Even outside the jurisdiction of the Fifth Schedule area, the Articles 163(1) and 163(2) confers discretionary power to the governors rather than go blindly by the advice of the council of ministers. If this is the general provision, the Constitution cannot be clearer about the Fifth Schedule of the Constitution. According to the attorney general, if power exercisable under Fifth Schedule is considered to be non-discretionary, the entire Fifth Schedule would fall flat. Since then, there has been recognition of an administrative oversight by the union government.

As a consequence of such a negligence of the constitutional obligation, all laws passed since the 1950s by Parliament and state legislature have been extended without examining if laws so passed have been conducive or detrimental to the interest of the tribal communities. And, so has been the case with rules and regulations of the governments that have adversely affected peace and good governance. Probably, the violation of the provision under the Fifth Schedule may turn out to be the classic case of the violation of the Constitution. After all, this has been going on ever since the adoption of the Constitution. And yet, the union and state governments, rather than acknowledging the anti-constitutional agenda and going for corrective measures, have been continuing with the administration and business as usual. How to explain this? Maybe tribes and their constitutional safeguards do not matter and there is nothing wrong in trampling them for nation-building, economic growth and the so-called public good.

 

Updated On : 12th Nov, 2019

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