The basis of the Fifth Schedule of the Constitution can be traced back to the laws of the British colonial government designating certain parts of the sub-continent ‘backward tracts’ and ‘partially excluded areas’. The latter term was incorporated into the Constitution and it is within these tracts labelled Scheduled Areas (wherein a large number of Scheduled Tribes reside, alongside other relevant criteria) that the Fifth Schedule is applicable. The debate around the Fifth Schedule, its relevance and its efficacy vis-à-vis the intentions of the Constitution makers are as contentious today as they were during the debates of the Constituent Assembly.
During the debates regarding the provisions of the Constitution of the modern Indian nation, the issue of the administration of the Scheduled Tribes generated heated debates on the post-colonial State’s policy toward and legislation on adivasi communities. Largely, nationalist leaders and social reformers favoured the assimilation of tribals into ‘mainstream’ Indian society, and their views were pitted against those of the British administrators and anthropologists who advocated isolationism or protection. These contrasting positions were reflected in the famous debate between G.S. Ghurye and Verrier Elwin in which the latter argued for a policy of protection of the ‘tribal way of life’ and the former stated that those in favour of isolation sought a revival of the past, and that Elwin’s position ignored the histories of tribal migration and intermingling with non-tribal populations. While both views were heard out, the policy ultimately adopted was a middle ground of ‘controlled integration’, the middle ground advocated by then Prime Minister Shri. Jawaharlal Nehru. There was, therefore, recognition of difference, even if this was done in the pursuit of its eventual erasure. An approach of simultaneous ‘protection’ and ‘uplift’ was stressed. The belief that tribal areas required special laws led to the setting up of the Advisory Committee on Fundamental Rights and Minorities by the Constituent Assembly, 1947. This body appointed three sub-committees in 1947 to look into specific tribal areas and make suggestions for their administration and functioning.
✓ The first was authorized to look into the excluded and partially excluded areas ‘other than Assam’ and was headed by Shri. A.V. Thakkar. This was incorporated as Fifth Schedule.
✓ The second committee to examine tribal areas within undivided Assam chaired by Shri. Gopinath Bardoloi. This was incorporated as Sixth Schedule
✓ The third was to analyse the situation of tribes in the North Western Frontier Province.
The report of the Joint Sub-Committee described tribal society as “lacking in such civilizing facilities as roads, schools, dispensaries and water supply”. Tribal people are described as “extremely simple people who can be and are exploited with ease by plains folk”. Hence, a policy of protectionism would be necessary since “sudden disruption of the tribal customs and ways by exposure to the impact of a more complicated and sophisticated manner of life is capable of doing great harm” At the same time, it was argued that isolationism was not the solution since only a continuous process of assimilation into mainstream Indian (and Hindu) society would lead to their ‘development’. The debate on the tribal question took place on 5th and 6th September, 1949 and the main focus remained on this issue – “reconciling the diversity of custom with the ‘national life of the country”.
The Fifth Schedule (Article 244(1)) of the Constitution finally adopted by the Constituent Assembly did not include several of the recommendations of the subcommittees and Assembly members. The Fifth Schedule contains provisions relating to the administration of Scheduled Areas other than in Northeast India.
• First, areas can be designated Scheduled Areas on the order of the President, who can similarly declare that certain parts of/entire Scheduled Areas cease to be such.
• Second, the Governor of each State having Scheduled Areas shall annually, or whenever required by the President of India, submit a report to the President regarding the administration of Scheduled Areas.
Currently, certain parts of 10 states States of the country are covered by the Fifth Schedule. those states are Andhra Pradesh , Telangana , Jharkhand , Chattishgarh , Madya Pradesh , Maharastra , Gujarat , Odisha , Rajastan , Himachal Pradesh
Part B of the Fifth Schedule provides for the creation of a Tribes Advisory Council (TAC) in each State having Scheduled Areas (and if the President directs, also in States having Scheduled Tribes but not Scheduled Areas), consisting of twenty members of which three-fourths must be representatives of Scheduled Tribes in the Legislative Assembly of that State. The duty of the TAC is to advise on matters pertaining to the “welfare and advancement” of the Scheduled Tribes “as may be referred to them by the Governor”.
Further, the Fifth Schedule grants extensive powers to the Governor who, by public notification, may direct that a law enacted by the Parliament or the State Legislative Assembly shall not apply to a Scheduled Area, or may apply subject to certain amendments or restrictions as he/she specifies. The Governor may only make such regulations on consultation with the concerned Tribes Advisory Council and subject to the final assent of the President.
The section states: The Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. In particular and without prejudice to the generality of the foregoing power, such regulations may-
- prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;
- regulate the allotment of land to members of the Scheduled Tribes in such area;
- regulate the carrying on of business as moneylender by persons who lend money to members of the Scheduled Tribes in such area.
These provisions were viewed as essential in view of the historical fact that adivasi livelihoods depend on the land and that alienation of resources had led to considerable impoverishment of adivasis during the colonial period. Nonetheless, the initial recommendations of the committees and the earlier draft of the Fifth Schedule accorded far greater autonomy to tribal areas than the final version, which watered down the role of the Tribes Advisory Council to a mere consultant rather than an autonomous decision-making body.
A Member of the Constituent Assembly, Shri. Jaipal Singh, had argued against this version of the Schedule and demanded instead: a statutory obligation that a report on the Scheduled Areas and Tribes be submitted by the Governor annually, that TACs be compulsorily set up in all States having Scheduled Tribes and not just in those States having Scheduled Areas, that the Governor should be bound to carry out the decisions of the TAC regarding the modification and amendment of laws made by Parliament or the State Legislature. Singh noted that the new draft (the one finally incorporated into the Constitution) made the Fifth Schedule considerably less powerful than he had hoped and “emasculated the Tribes Advisory Council”. Lamenting the lack of powers to the tribal people themselves and their representatives in the TAC, Singh stated: “The whole pattern of the original draft was to bring the Tribes Advisory Council into action. It could initiate, originate things, but, somehow or other, the tables have now been turned. The initiative is placed in the hands of the Governor or Ruler of the State.”
Another Constituent Assembly member, Shri. Yudhishtir Misra, held that the TAC should not only be allowed to advise on the “welfare and advancement” of tribes, but also more broadly on the administration of the Scheduled Areas. Moreover, Misra warned that the advisory powers of the TAC should not be circumscribed by the whims and fancies of the executive as seemed likely given the current form of the Fifth Schedule – which states that the TAC can only advise on matter referred to it by the Governor. However, their suggestions were refused by their colleagues in the Assembly who believed that the work of the TAC must not be of a political nature on the grounds that it might lead to separatism and that tribals would not themselves be able to comprehend the complexities of lawmaking. Rather than grant genuine autonomy to tribal India, the Fifth Schedule paternalistically placed their welfare in the hands of a representative of the Centre.
Unlike the Sixth Schedule wherein Autonomous District Councils have been given significant legislative, judicial and executive powers on several important matters, the Fifth Schedule places the governance of tribal areas in ‘mainland’ India largely in the hands of the Governor. This occurred for two reasons: one, mainland areas had large non-tribal populations and two, the tribes of the Northeast were seen as more advanced and capable of self-governance unlike the tribes in other parts of the sub-continent. As a result, tribes were given ‘protection’ from outside intrusions and land alienation but were not granted much autonomy on political and economic matters.
Governor’s Report
Over the years, States with Scheduled Areas have developed a framework around which the Governor’s reports are to be presented. According to the Scheduled Areas and Scheduled Tribes Commission Report (2002-2004), the Governor’s report is expected to contain an objective and independent assessment of the quality of the administration of Scheduled Areas, the implementation of protective safeguards for tribals, and the regulations made by the Governor in keeping with his powers under the Fifth Schedule. It should further cover issues of displacement and rehabilitation, law and order problem, tribal protests, atrocities against tribes, and so on. This report is required to be placed before the TAC for their advice and recommendations. On the basis of this Report, the Union Government may issue directives to the State Governments for better administration of these areas.
According to the Bhuria Commission Report (2002-2004), at the time of their writing, the States of Andhra Pradesh and Madhya Pradesh did not send their reports since 1999-2000, while Maharashtra and Orissa had not sent theirs from 2000-2001 onward. Only Himachal Pradesh has submitted its report regularly. In more recent years, the Ministry of Tribal Affairs reports that, as of 25.5.2013, it had received Governor’s Reports for the year 2011-12 only from Gujarat and was still awaiting reports from the other eight States. Maharashtra had not submitted its report for the previous year 2010-11 either. Even when the reports are sent regularly, there have been several questions raised regarding the quality and value of the reports. Critics have pointed out that the reports are repetitive, casually and haphazardly constructed and tend to borrow heavily from reports of the tribal welfare department, merely listing out the schemes and programmes for tribal development without even examining their implementation and efficacy on the ground. Pressing issues such as the impacts of insurgency and counter-insurgency on tribal populations and displacement by big industry rarely find mention. The Governor’s Reports offer quantitative rather than qualitative or analytical data about the status of tribal administration in the concerned States – even the statistical information presented relates to the flow of development funds to tribal villages and the number of beneficiaries of government welfare schemes. The reports do not offer an independent assessment of the policies of the State Governments vis-à-vis Scheduled Areas and instead seem to uncritically accept government claims of tremendous achievements with regard to tribal development.
A confidential report sent to the President by the National Commission for Scheduled Tribes (accessed by Down to Earth magazine in 2013) has also complained of the failure of Governors in performing their administrative duties to ensure self-governance in tribal areas. The National Commission advocated that Governors be made more accountable with regard to their roles vis-à-vis Scheduled Areas, namely ensuring the implementation of constitutional provision protecting tribal rights. Most importantly, the Governor should ensure that all laws which contradict the constitutional protections for tribals should be repealed or modified in Scheduled Areas. The NCST further recommended that the Ministry of Tribal Affairs prepare a detailed format for submission of the Governor’s reports which could include a review of all Central and State laws and their compatibility with Constitutional provisions for Scheduled Tribes and consultation with the TACs. Other experts have also advocated the inclusion of an Action Taken Report (ATR) for the previous year in the report of the subsequent year. Where such regulations have been made, they primarily pertain to control of land alienation and money lending in tribal areas and do not venture to cover the spectrum of issues that may be covered under the “peace and good government” of the area. There are several instances in which the Governor has exercised his powers to make regulations. In Odisha, these regulations have included the Odisha Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation 1956, Odisha Scheduled Area Money-Lenders Regulation 1967, and the Odisha Schedule Area Debt Relief Regulation.
However, reviews of the implementation of these regulations (as well as similar laws seeking to stem land alienation and money-lending in tribal areas) points to their failure owing to excessive dependence on the powerful mainstream bureaucracy unwilling to acknowledge tribal rights over land and forest. More recently, the Bhuria Commission Report has further recommended the inclusion of another subject under which the Governor could exercise his powers – for the regulation of trade and commerce in the Scheduled Areas of the State.
In April 2012, Union Minister for Tribal Affairs, Dr. V. Kishore Chandra Deo requested the Governor of Andhra Pradesh, Shri. E.S.L Narsimhan, to use his powers under the Fifth Schedule to cancel a Memorandum of Understanding (MoU) signed by the Government for bauxite mining in Fifth Schedule areas of Visakhapatnam district. It has also been noted that when Governors do exercise their Fifth Schedule powers, it is only on the advice of the Council of Ministers. Activists have complained that Governors never respond to petitions calling for their intervention in cases of land conflicts, acquisition for mineral extraction and police atrocities against tribal communities.
In order to assist the Governor in the fulfilment of the Constitutional duties of his/her office, the creation of a special Governor’s Cell to work specifically on issues pertaining to the Scheduled Tribes has begun in several States. The governments of Chhattisgarh, Jharkhand, Maharashtra and Rajasthan have informed the Ministry of Tribal Affairs that they have constituted the Governor’s Cell in their States, although the details of their functioning are not yet known. The Governor’s Office in Andhra Pradesh has noted that there is no need for such a cell in the State since the Tribal Welfare department is capable of performing the same duties. The State of Madhya Pradesh has informed the Ministry that there was no consensus on the creation of such a cell. According to the Government of Himachal Pradesh, such a cell has already been formed in their State. The formation of the Governor’s Cell is a longstanding necessity in order for the Governor to properly carry out the duties of the post vis-à-vis protection of the tribes. It is imperative that the Cell be set up in all the Fifth Schedule States and that these Cells function independently and conscientiously. Most importantly, the Cell should be prevented from becoming simply another bureaucratic institution among many performing its tasks mechanically with little autonomy or interest in tribal affairs.
Tribes Advisory Councils
These Councils have been set up in all the nine States having Scheduled Areas as well as two other States, West Bengal and Tamil Nadu, both having sizeable tribal populations. As discussed above, there are several shortcomings inherent in the structure and mandate of the TACs as laid down in the Constitution. Firstly, the TACs can only discuss and make recommendations on those issues which are referred to it by the Governor. Secondly, it functions only in an advisory capacity and has no power of implementation. Thirdly, the Councils are not accountable to the tribal population given that they are appointed by the Governor or the State Government.
A detailed study of the minutes of the meetings of the Tribes Advisory Councils by the Asian Indigenous and Tribal Peoples’ Network (2012) reveals that the meetings of the Councils are almost tokenistic and critical issues (such as land alienation) are rarely discussed. Further, the resolutions of the Councils are not followed up in subsequent meetings and the implementation of their recommendations is not independently verified. The issue of the representativeness of the TACs is also a central issue – while three-fourths of the members are to be tribal MLAs from the concerned State, the non-official, nominated members include the Chief Minister of the State (often the Chairperson of the TAC) and bureaucrats.
The States’ rules for the appointment of members hold that they shall be appointed, either by the State Government (Rajasthan Tribes Advisory Council Rules) or the Governor (Andhra Pradesh TAC Rules and Jharkhand TAC Rules) with no specifying criteria. It is the State Governments rather than the Governor which have framed the rules regarding TAC functioning which has led to the near complete usurpation of these bodies by the political parties in power both in terms of representation within the Councils as well as the issues that are taken up for discussion.
The Gujarat Tribes Advisory Council Rules, 1960 provides that “No business shall be transacted and no proposition shall be moved or discussed at any meeting, unless it has been specified in the notice for convening the meeting.” The Jharkhand Tribes Advisory Council Rules states that only those matters shall be discussed in the Council which has been referred to the Council by the Governor for advice.
While observing TAC members of various states a large portion of the members are State functionaries and there are few independent persons with experience and expertise on tribal issues who are nominated to the Council.
Further, the members of the TAC have few powers even in terms of what can be discussed at the Council meetings. For instance, the Chhattisgarh TAC rules states that, apart from matters referred to it by the Governor, “No issue shall be taken up for discussion and included in the proceedings and no proposals shall be passed in a meeting unless the issue has been mentioned in the notice for the meeting, however, the Chairperson can, using his discretion, permit such issues to be taken up for proceedings, that he thinks necessary and are in the direction of the motto of the Council at large but was excluded in the notice.”
The Bhuria Commission Report (2002-04) places on record the dismay of some members of various State Councils who complain that the State Government do not put any important matters to the Council for advice. In all these years of its functioning, the TACs have rarely made any significant policy proposals or recommendations on tribal and developmental issues.
Even when issues are taken up by the TAC, it has been noted that there is rarely any sustained and consistent engagement with the matter in the form of follow ups and field visits. As per the minutes of their meetings, none of the TACs discussed the issue of land alienation among tribals between the years 2005 and 2011. In the case of the Himachal Pradesh TAC, an excess of items were placed before the Council for discussion but many seem to have been subject to only a cursory examination and no decisive conclusions were reached. For example, the Asian Indigenous and Tribal Peoples’ Network (AITPN) report notes that at the 36th meeting held on 12 May 2006, 102 items were discussed; 104 items were discussed at the 38th meeting on 2 August 2007, and 88 items (including 21 follow up items and 67 new items) were discussed in the 40th meeting held on 15 May 2010. As a result, no single issue or group of issues could be seriously analysed and few concrete decisions could be made or implemented.
In 2012, the extremely limited powers of agenda-setting within the TAC came to the fore when two members of the Jharkhand TAC walked out of a Council meeting on the grounds that the Chairman of the TAC was uninterested in taking up serious problems of the tribal population. The specific matter which the members protested was land acquisition at Nagri for construction of India Institute of Management (IIM) and National University for Study and Research in Law. The Chairperson, however, did not allow discussion on the subject, stating that it be brought before the Council in writing first. The Chairperson’s statement was countered by the members on the grounds that several memorandums had been submitted to the Council already and hence, must be placed for discussion.
There continue to be complaints regarding the legal and actual powers of the Governor with regard to the TAC as well on the point of issues to be discussed within the Council. While the Constitution holds that the TAC can hold deliberations on matters referred to it by the Governor, experts have argued over whether the Governor as the Constitutional head of the State can make this referral on his own discretion or only on the advice of the Council of Ministers. The question is central since the answer could shape future interpretations of the Fifth Schedule as well as the extent of control of various State Governments over the functioning of TACs. In recent years, the Central Government itself has given two contradictory interpretations on this issue since, in 2010, the Attorney General Shri. G.E. Vahanvati opined that the Governor did have discretionary powers, but in 2013, the Assistant Solicitor-General, Smt. Fouzia Mirza stated that the Governor can employ his powers on the aid and advice of the Council of Ministers and not at his own discretion. This statement was made to a Public Interest Litigation (PIL) filed by activist Shri. B.K. Manish in the Chhattisgarh High Court (later dismissed) questioning the un-Constitutional functioning of the TACs, which was later argued through a Special Leave Petition (SLP) in the Supreme Court. In light of this case, the Ministry of Law and Justice issued a circular to all law officers in July, 2013 clarifying that Attorney General Shri. Vahanvati’s opinion affirming the discretionary powers of the Governor was the official stand of the Government of India.
Even when serious debate does occur at the TAC, the Council does not follow up on latest development and implementation on their recommendations. The Andhra Pradesh TAC took up the matter of the Polavaram project at its meeting in February 2007 and made the following resolutions: that all landless families to be displaced by the project should be given land in the resettlement areas, resettlement land should be identified in consultation with tribals, a publicity campaign on the R&R package should be held in all affected villages, and the TAC members should visit these villages. Between that meeting and their meeting in March 2011, however, no further inquiry or discussion of the issue was initiated and the matter seems to have been forgotten entirely.
Since the formation of the first TAC in Andhra Pradesh in 1958 until January 2012, 105 meetings of the Council have been held. But since 2006, the APTAC has stopped examining the action taken on decisions made in previous meetings, as was the practice earlier. The concerned departments do not always submit Action Taken Reports to the TAC and therefore, the earlier decisions and recommendations of the TACs, even when implemented, are not revisited in subsequent meetings (as reflected in the minutes). This is true of the Councils in almost all of the States.