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
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).
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).
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
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
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:
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
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
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 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.
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
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).
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.
since only a handful countries have ratified the revised convention, the ILO
should facilitate more discourse for more countries to join.
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,
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)
of Tribal Affairs. (2017-18). Annual Report. Delhi: Ministry of Tribal
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)
(1989). ILO Conference (pp. Appendix 25, 25/3). ILO.
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)
B. 2019. The Fifth Schedule of the Constitution-A Critique. Economic and
Political Weekly, Vol. 54, Issue No. 4, 125.
N. 'Fifth Schedule-A Critique' (https://www.deccanherald.com/content/651307/fifth-schedule-critique.html).
1 January 2018 (accessed on 30 December 2019)