CENTRE for POLICY ANALYSIS

CENTRE for POLICY ANALYSIS

“Social progress can be measured by the social position of the female sex” - Karl Marx

ARTICLE


The Fifth Schedule: Tribal Advisory Councils and International Perspectives


Introduction

What were the 'depressed classes' from Census 1917 to 1931 became the Schedule Tribes and later Adivasis after India's independence. In Census 2011 'Adivasis' constituted 8.6% of the Indian population, whereas indigenous people are thought to constitute 5% of the world population.  

In Part X of the Constitution of India, Article 244(1) titled 'Provisions as to the Administration and Control of Scheduled Areas and Scheduled Tribes', applies the Fifth Schedule to the 'scheduled areas' as declared by the President of India. States covered under this schedule are Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana.  

These are different from the 'tribal areas' explicitly covered by the Sixth Schedule in the states of Assam, Meghalaya, Tripura and Mizoram.  

'The Constitution of the Constitution, or a miniature constitution' - this was the description of the Fifth Schedule by former Chief Justice the late Mohammad Hidayatullah.  

The most crucial component under Part B of the Fifth Schedule is the provision for Tribal Advisory Councils (TACs).  

Historical background  

In the Constituent Assembly the parent committee named the 'Advisory committee on fundamental rights, minorities and tribal and excluded areas' under the chairmanship of Sardar Patel, had a sub-committee on excluded and partially excluded areas (other than those in Assam) under the leadership of A.V.Thakkar, whose report along with others was presented by B.R.Ambedkar on 5 September, 1949 in revised form.  

However, Jaipal Singh, principal speaker for the rights of Scheduled Tribes, was dissatisfied with the draft. He moved five major amendments, all of which were negated. Most importantly among them, he said the revised draft had "emasculated the Tribes Advisory Council" and demanded that the Governor should act on the advice of the TAC (Singh 2019). He went to the extent of calling the possibility of a TAC a farce.  

Yudhisthir Mishra was another important member who put forward amendments similar to Singh's to make the TACs stronger. He emphasised the consultation process, but even his amendments were negated. The revised draft, which gave immense powers to the Governor with respect to the functioning of the TAC, including the non-binding nature of the TAC's advice and despite strong opposing views, was passed as it was. Despite this, A.V.Thakkar thought the innovation of the TAC was a great advance.  

The existing structure of the Fifth Schedule is similar to the proposed draft. It seems as if the new concept of TAC was introduced for it to function as the eyes and ears of the nominated governor (ibid). According to para 4(2) and subpara 3 of the schedule, the TAC advises the governor on matters related to the welfare and advancement of the STs, and the governor makes rules for the council.  

If the recommendations of the TACs were taken into consideration, the sociopolitical setting of the respective states would have been different. It would not be an exaggeration to say that this difference would have been clearly reflected in the human development indices of these areas and communities.  

Perhaps the existing efforts have not yielded the expected results, leading to more concrete changes by the government.  

National Tribal Advisory Council   In 2015 the Government of India decided to set up a National Tribal Advisory Council to be chaired by the Prime Minister. Its stated primary objective was the effective monitoring and implementation of various tribal welfare schemes.1 However, not much has been done on this front.  

According to the annual report of the Union Ministry of Tribal Affairs 2017-18, the majority of the states have not reported their meetings. Of those that have reported the meetings, only Jharkhand and Uttarakhand had two meetings in the year of 2016-17.  

This highlights the councils' complacency and the difficulty in comprehending their progress, diminishing the potential of the Fifth Schedule and reinforcing the floating ideas of a or lameduck Fifth Schedule (Singh 2015).  

Landmark judgements  


Similarly, the Supreme Court has interpreted the schedule differently at different times, mainly swinging around the clause of discretion in which the powers of the Governor are discussed.  

In Shamsher Singh v. State of Punjab2 the court elaborated the discretionary powers of the Governor. It held that such powers can be assumed to exist only where expressly spelt out in the Constitution.  

In the Samatha case, the Supreme Court held that the provisions of clauses 5(2) (a) and (c) were legislative as well as executive powers, and that the executive power of the state in para 2 is subject to the legislative powers of the governor in the Fifth Schedule (Singh 2019).  

In 2013, the assistant solicitor-general told the High Court that Governors have no discretionary powers under the Fifth Schedule. However, former attorney-general G.E.Vahanvati had in April 2010 given his opinion to the Union Ministry of Home Affairs that the Governor does have discretionary powers.  

Thereafter, there have been differing expert opinions; however, the Schedule limits discussions in the TAC to matters referred to it by the Governor.  

In one of the controversial cases, a petition was filed by B.K.Manish in 2015 in the apex court after being rejected by the lower courts in 2012.3 It stated that the Fifth Schedule is meaningless until the Governors of states get discretionary powers for administration of the schedule areas, and have the power to revise or supersede government decisions in the interest of tribal communities (Jitendra 2015).  

The intention behind the demand was clear: there will be contesting interests, and if the same person heads both the Cabinet and the TAC, as in that case, there will be difficulty in deciding the best interests of tribals.  

The discretionary power of the Governor is a double-edged sword: helpful for taking decisions independently of the Cabinet, but amenable to influence due to the political moorings surrounding appointments to the office.  

A high-level committee was appointed by the Prime Minister's Office in August 2013 under Verginius Xaxa to study the socioeconomic status, health and education of tribals, whose contents were leaked. The points mentioned above were raised by the report, especially on page 76 where it says:  

"...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." 

These debates take us back to the Constituent Assembly debates where similar contentions were discussed. In the interim however, this negation has taken a toll on the entire schedule and the well-being of Adivasi communities.  

Major contentions with the schedule  


It has been said that the parent legislations did not contain the word 'control', which has been introduced in the existing legislation. This hints at the centralising tendency of the government and the Constituent Assembly which disregarded the views of the ST representatives. Undeniably, there are existing structural flaws in the schedule.  

First, unlike Autonomous Districts Councils (ADCs) under the Sixth Schedule, TACs are advisory in nature and do not have legislative or financial powers.  

Second, the composition of the council with respect to the remaining one-fourth4 part is unclear. It was suggested that the remaining one-fourth seats should also be given to representatives from tribal communities.  

Third, the ambiguity surrounding the discretionary power of the Governor, as discussed.  

For instance, several important policy decisions were taken by the Andhra Pradesh TAC which the state government completely disregarded. These were aimed at ensuring the autonomy of tribals in the Scheduled Areas of the state, including the proposal that all the posts of Directors and Chairpersons of Cooperative bodies, Zillaparishads, Territorial Constituency (ZPTC) members, the posts of Presidents/Chairman and members of Water Users Associations in the Agency Areas should be reserved for the local tribals.  

The other decision was that devastanams (temples) in Agency Areas should be managed by a committee of local tribals only (Rao 2017).  

All were negated due to political pressure, showing that the decisions taken by TACs are not as impactful as their implementation depends upon the whims and fancies of the state executive and legislature and electoral politics.  

Bhupinder Singh, former adviser to the Planning Commission and Special Commissioner for Scheduled Tribes, Government of India had recommended the monitoring of the Panchayat Extension to the Scheduled Areas (PESA) and Forest Rights Act (FRA) by TACs to improve their implementation.  

It's time our policymakers revisit the schedule, with a focus on the discretionary power of the Governors, in order to strengthen these councils. This along with a change in our perspective on 'development' will truly contribute to tribal rights.  

International perspective  

Various international conventions and treaties safeguard the rights and freedom of indigenous communities. To mention a few, the UN Universal Declaration on Human Rights recognises the equal rights of the human family to discuss 30 articles affirming an individual's rights. The UN Convention Concerning Indigenous and Tribal Populations, ratified by India, seeks to protect the ownership rights of populations over lands they traditionally occupy. The UN Declaration on the Rights of Indigenous People, to which India is a signatory, mandates states to protect the rights of indigenous people to lands, territories and resources which they traditionally own, occupy and use. The UN Convention on Biological Diversity advocates the preservation of indigenous knowledge and practices, and the Rio Declaration on Environment and Development proclaims that indigenous people have a vital role in environmental management.  

Most important of all, the ILO's revised convention on the rights of indigenous and tribal peoples, Convention No. 169,5 has not been ratified by India, even though it ratified its precursor, C107, which discussed topics like health, education and land related rights, but without the assimilation aspect concretely present, because of which it was revised.  

The Government of India has reiterated that the tribal peoples in India are not comparable in terms of their problems, interest and rights, to the indigenous populations of certain other countries. For this reason, attempts to set international standards on some of the complex and sensitive issues involved might prove counterproductive (ILO 1989).  

Another contention is on the issue of land rights: that the Committee should carefully consider the impact that the use of 'peoples' could have in countries beset with the problems of integration.  

However, since only a handful countries have ratified the revised convention, the ILO should facilitate more discourse for more countries to join.  

Endnotes  

1. PIB release dated 25 October 2015 16:30 IST  

2. Samsher Singh v. State of Punjab, (1974) 2 SCC 831: AIR 1974 SC 2192  

3. He is a Chhattisgarh-based tribal rights activist.  

4. Tribes Advisory Council consisting of not more than twenty members of whom, as nearly as may be, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State.  

5. Adopted on June 27, 1989  

References  

Jitendra. 'Fifth Schedule and the fate of scheduled areas' (https://www.downtoearth.org.in/blog/governance/fifth-schedule-and-the-fate-of-scheduled-areas-49454). 7 July 2015 (accessed on 29 Decemeber 2019)  

Ministry of Tribal Affairs. (2017-18). Annual Report. Delhi: Ministry of Tribal Affairs.  

Rao, D.P. 'How Tribal Advisory Council decisions in Andhra Pradesh were disregarded under political pressure' (https://counterview.org/2017/10/10/how-tribal-advisory-council-decisions-in-andhra-pradesh-were-disregarded-under-political-pressure/). 10 october 2017 (accessed on 29 December 2019)  

Seventy-sixth Session. (1989). ILO Conference (pp. Appendix 25, 25/3). ILO.  

Singh, B. 'A lame duck Schedule of the Constitution' (https://www.downtoearth.org.in/news/a--lame-duck-schedule-of-the-constitution--46191). 5 July 2015 (accessed on 30 December 2019)  

Singh, B. 2019. The Fifth Schedule of the Constitution-A Critique. Economic and Political Weekly, Vol. 54, Issue No. 4, 125.  

Veeresha, N. 'Fifth Schedule-A Critique' (https://www.deccanherald.com/content/651307/fifth-schedule-critique.html). 1 January 2018 (accessed on 30 December 2019)    

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