This article critiques the Fifth Schedule of the Constitution in its entirety. It looks particularly at its discretionary character, so far not analysed, with a view to suggest measures for the accelerated “welfare and advancement” of the Scheduled Tribes (STs). While upholding that character, it discerns that, by and large, the discretionary powers vested in the governor of a state having scheduled areas, have hardly been used.
Constituent Assembly
According to the Lok Sabha Secretariat’s Official Report of Constituent Assembly Debates (1949), on 5 September 1949, B R Ambedkar moved a draft of the Fifth Schedule, in substitution of an earlier draft, in the Excluded and Partially Excluded Areas (other than those in Assam) Subcommittee of the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas. The revised draft was identical to the one we see today.
While moving the motion, Ambedkar made the following important observations.
(i) There was no necessity for the Constitution to create an advisory council in a state which had some ST population but had no scheduled area, and it would be better to leave the matter to the President, whether or not to create an advisory council.
(ii) Para 5, as it originally stood, required that if the Tribes Advisory Council (TAC) directed that the laws made by Parliament or the local legislature should be made applicable to the scheduled areas in a modified form, then the governor was bound to carry out the “order or decision” of the TAC. Ambedkar stated that
It was felt that it would be much better to let the Governor have the discretion in the matter of application of the laws made by Parliament or by the local Legislature to the scheduled areas and that his discretion should not be controlled absolutely. (Lok Sabha Secretariat 1949: 967)
(iii) Para 7, as it originally stood, had no provision for the amendment of the Fifth Schedule. In the revised draft, it was provided that Parliament should have the power to amend the schedule. The reason given by Ambedkar was that
the provision contained in sub-para (2) of paragraph 5, where, so to say, the Governor is constituted a law-making body for making regulations of certain character which are mentioned in (a), (b) and (c) … should not be stereotyped for all times and that it should be open to the Parliament to make such changes as time and circumstances may require. (Lok Sabha Secretariat 1949: 967)
(iv) In putting forth the new schedule, the Drafting Committee had discussed the matter with the representatives of the provinces concerned with scheduled areas, and the STs, and had also taken into consideration the opinion of assembly member A V Thakkar. Informing the house that the new schedule had the approval of all concerned parties, Ambedkar urged its acceptance.
According to the record of the debate, assembly member Jaipal Singh, who seemed to have been the principal ST speaker, moved a number of amendments in the subcommittee. An expression of his dissatisfaction with the revised draft is as follows:
I find that this new proposed Fifth Schedule has, somehow or other, perhaps without meaning it, emasculated the Tribes Advisory Council. 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 the Ruler of the State. I regret that that is a situation I cannot accept, and, while I say this,
Mr President, I would like to state it is a matter of regret I have to tell the House that, for the last days secret talks and conferences have been going on among certain people. I have not been consulted … Suddenly a bomb-shell has been thrown by way of the new Fifth Schedule. I do not grumble about the Fifth Schedule. But what I say is there is plenty of scope for improving the Fifth Schedule. I as an Adibasi had and must have the first claim to be consulted in the proposed change. (Lok Sabha Secretariat 1949: 976)
It is quite true that the revised form of the Fifth Schedule is more comprehensive than the original draft. …. it is to that end that I have tabled all my amendments and I hope Dr Ambedkar and his Drafting Committee will produce their own mantar and, somehow or other incorporate the ideas I have put forward in my five amendments. (Lok Sabha Secretariat 1949: 991)
Out of the five amendments that Jaipal Singh moved, four are dealt with as follows:
(i) For the report of the governor to the President, para 3 of the schedule refers to scheduled areas only. The amendment (Lok Sabha Secretariat 1949: 975) suggested the insertion of the words “Scheduled Tribes” after the words “Scheduled Areas,” enabling the governor to report on the ST people, in addition to the happenings in the scheduled areas. Subsequently, in the course of the debate, assembly member Jadubans Sahay supported him. The amendment was negated.
(ii) As per sub-para 2 of para 4, the TAC has to advise the governor on matters relating to the welfare and advancement of STs, referred to it by the governor. Jaipal Singh’s second amendment (Lok Sabha Secretariat 1949: 976) asked for the addition of “administration” to “welfare and advancement,” to the template of advice. It would have strengthened the TAC and the administration. He was supported in this proposal by assembly member Yudhisthir Mishra. In the final stage, however, accepting the explanation of assembly member K M Munshi, he withdrew the amendment.
(iii) Jaipal Singh’s third amendment (Lok Sabha Secretariat 1949: 976) pertained to sub-para 1 of para 5. It demanded that the governor act on the advice of the TAC, in the context of the extraordinary legislative powers conferred on him. Bereft of the advice, the provision would have been autocratic. Jaipal Singh minced no words in saying that the revision of the schedule had “emasculated the Tribes Advisory Council.” Yudhisthir Mishra also tabled a similar amendment (No 46), but withdrew it later. Assembly member Muniswamy Pillay sent forth a call for making the advice of the TAC mandatory. Jaipal Singh’s amendment was negated.
(iv) The fourth amendment (Lok Sabha Secretariat 1949: 976) was related to sub-para 5 of para 5, requiring the governor to act in making regulations in accordance with the advice of, and not merely in consultation with the TAC. Yudhisthir Mishra wanted a consultation with the TAC before the issue of any notification. Member Shibban Lal Saxena expressed the view that it was necessary to consult the TAC before issue of notifications in his two amendments. However, Jaipal Singh’s amendment was negated. He explained the essence of his proposals thus:
As I have already stated, there are only two principles involved in the five amendments: first, that the Scheduled Tribes, all of them, should be benefited by the provisions of the Fifth Schedule and, secondly, that the Tribes Advisory Council should be a reality and not a farce. Let us not give it a big name, without any powers to do things. (Lok Sabha Secretariat 1949: 976)
Other Amendment Suggestions
Yudhisthir Mishra moved a number of amendments:
(i) The amendment relating to sub-para 2 of para 4 was of far-reaching character. He proposed that the TAC should also advise on the administration of scheduled areas. The second part of the amendment was against the circumscription of the scope of the TAC’s advice, to matters referred to it by the governor. Thus, he was at one with Jaipal Singh towards the creation of a strong TAC, but he withdrew the amendment (Lok Sabha Secretariat 1949: 977).
(ii) In another amendment supporting Jaipal Singh, he opined that in effecting changes in the laws of Parliament or of the state legislature, the governor should be guided by the advice of the TAC and, for the purpose, the words “on the advice of the Tribes Advisory Council” be added appropriately in sub-para 1 of para 5. Further, he suggested that the TAC should be consulted before the issue of a notification under para 5 (reference amendment No 51) (Lok Sabha Secretariat 1949: 978).
Both the amendments were shot down.
Shibban Lal Saxena’s observations and the amendments proposed by him were aimed at broad-basing decision-making, by involving the President and Parliament more, and strengthening the TACs. The other relevant part of his suggestion has been included above. None of the amendments found favour. Jadubans Sahay supported Jaipal Singh’s amendment calling for coverage in the governor’s report of all the tribals in the state. He hoped that the provincial governments would give correct advice to the President, “to whom has been entrusted the formation of the Scheduled areas” (Lok Sabha Secretariat 1949: 986). A V Thakkar thought that the innovation of the TAC was a great advance. He supported the revised draft of the Fifth Schedule. Reinforcing the view of Jaipal Singh for the enlargement and sharpening role of the TACs, Muniswamy Pillay said,
whatever recommendations are made by this Council, must be mandatory, and the Government without overriding the recommendations of the Advisory Committee, must give effect to them. (Lok Sabha Secretariat 1949: 990).
Winding up the debate, K M Munshi made some observations. Two of his observations may be noted. First, referring to the proposal in the amendments for adding “Scheduled Tribes” to the words “Scheduled Areas,” wherever the Schedule carried the latter phrase, he thought that the acceptance of the amendments could lead to the ridiculous situation of a tribal person coming to a city being “regarded as a different individual from the rest of the community” and needing “a tribal committee to look after him.” It needs to be pointed out that the discourse of the day related to scheduled areas, and conceivably at that time, there could hardly have been a city as such within the scheduled areas, barring some small- to medium-sized urban conglomerates. Second, an issue which indeed is the crux of the Fifth Schedule, as it was passed then, and also as it stands now, concerns the following statement by him:
Under the draft as it stands all that the Governor has to do is that they should be consulted with regard to the regulations. In regard to notifications when he thinks that certain provisions of the Central Act or the Act of the State should apply in the interests of the tribals, no previous consultation is necessary because all the sacred trust in respect of this step is placed on the Provincial Government. (Lok Sabha Secretariat 1949: 998–99)
To put it very briefly, two direct benefits were bestowed in the Fifth Schedule for the “welfare and advancement” of STs (para 4[2]). First, the TAC (para 4[1]), and second, the legislative power vested in the governor of a scheduled area state. Both the benefits have remained qualified in application. The agenda of the TAC was circumscribed to that referred to it by the governor (para 4[2]), and to “consultation” instead of “advice” (para 5[5]). While the legislative power of the governor under para 5(5) has been exercised to some extent, there is hardly any evidence of the deployment of legislative power under para 5(1), as explained later in this article. The non-acceptance of the amendments tabled by Jaipal Singh, and others who thought alike, meant foregoing the opportunity of strengthening ST “welfare and advancement,” to the extent the amendments would have enabled, and making it over to the “sacred trust” of the provincial government.
To clarify the matter concerning TACs further, the debate had been steered on the lines of the Drafting Committee’s draft, in culmination made even clearer in the words of K M Munshi:
The third set of amendments … are to the effect that the Tribes Advisory Council should be miniature senates with power to aid and advise the Governor in all matters falling within the purview of this schedule; there should be a kind of responsible Government with regard to these matters under which the Governor should accept the advice of not of a ministry but an assembly. That is an utter absurdity. (Lok Sabha Secretariat 1949: 998)
In the result, the TAC’s utility was strictly limited to two spheres: (i) as a forum of discussion only on matters referred to it by the governor and tendering advice thereon, as per para 4(2), and (ii) for consultation in the matter of framing regulations, as per para 5(5). The pleas of members to: (i) have it contribute on important matters by not being hamstrung by a governor-referred agenda, (ii) assign it advisory role in para 5(1), and (iii) expand its role seeking its advice instead of mere consultation in regulation-making, even making the advice mandatory, were all brushed aside. The curtain was drawn on the debate the same day, with what may be regarded as valedictory remarks by K M Munshi. The revised draft schedule, for the amendment of which some speakers spoke sincerely and passionately but in vain, seems to have had a preordained script. From the record of the debate, it seems that in the given environment, the Dalit icon Ambedkar also acquiesced.
Outcome of the Debate
We have inherited the Fifth Schedule literally as it was adopted on 5 September 1949. The schedule has four parts—A, B, C and D. Part A, para 2, reads, “Subject to the provisions of this Schedule, the executive power of a State extends to the Scheduled areas therein,” making it clear that the powers vested by the schedule in the governor of scheduled areas may override, in some matters, the executive powers of the state in the said areas. There is a manifest nexus between this para and the governor’s powers in Part B, paras 4 and 5. Also, it has a direct connection with the discretionary clause in Article 163(1) of the Constitution. Part A, para 3, relates to the overlay domain of the central government. It consists of two components. The first calls for an annual report from the governor to the President, regarding the administration of scheduled areas in the concerned state; it also empowers the President as they may ask for such a report at any other time. Significantly in its second part, the union has been conferred the executive power of giving directions to a state, in regard to the administration of the scheduled areas in that state.
Skipping Part B for the moment, Part C para 6 concerns the identification and declaration of scheduled areas. The President has the responsibility of declaring areas in the country as scheduled areas. Part D, para 7, contains a novel feature: unlike the procedure for other proposals for amendments prescribed in Article 368 of the Constitution, an amendment of the Fifth Schedule approved by Parliament is deemed adequate. Part B, comprising paras 4 and 5, essays the roles of the governor and the TACs. Para 4 speaks of the TACs and para 5 pertains to the legislative and executive powers of the governor, in respect of scheduled areas. The President figures only twice—in para 4(1) for the establishment of TACs in states having no scheduled areas, and in para 5(4) for his assent to governor-drafted regulations under para 5(2). Sub-paras 2 and 3 of para 4 and sub-para 5 of para 5 are with regard to the governor–TAC interaction. Sub-paras 1, 2 and 3 of para 5 concern governor-centric powers.
It looks as if the new concept of TAC was introduced for it to function as the eyes and ears of the nominated governor. As per para 4(2), a TAC is to advise the governor on such matters pertaining to the welfare and advancement of the STs, as (s)he may refer to the council. Sub-para 3 empowers him/her to make rules for the council. Considering Part B further, as per para 5(1), legislative power for the scheduled areas is exercisable by the governor: they have the authority to notify that any particular act of Parliament or state legislature shall not apply to a scheduled area, or any part thereof in the state, or shall apply subject to such exceptions and modifications, as they may specify in the notification. A noteworthy unusual dimension here is that the directions can have retrospective effect. The initial moot point is whether in exercising this authority in respect of scheduled areas, they have to be aided and advised by their council of ministers, as per Article 163, or they can wield power at their own discretion in tribal interest.
Highlighting the features of this para, the legislative and executive power vested in the governor, not very dissimilar to that of Sections 91 and 92 of the Government of India Act, 1935, is rather extraordinary, in the following ways. (i) According to sub-para 1, central and state laws normally apply to scheduled areas, but the governor can preclude or modify any law among them in application to a scheduled area and further, they can exercise this authority retrospectively.
(ii) With reference to sub-para 2, they are competent to frame regulations for the peace and good government of scheduled areas.
(iii) With reference to sub-para 3, in making such regulations, they can repeal or amend any act of Parliament or of the legislature of the state, or any existing law which is for the time being applicable to the area.
Constitutional Issues
In some respects, paras 4 and 5 of the Fifth Schedule posit important and contentious constitutional issues. The first important question is whether the governor of a scheduled area state can act in his/her discretion. Para 2 of the schedule qualifies the powers of the state in the scheduled areas, with the words “Subject to the provisions of this schedule.” This would mean that wherever and whenever necessary, a state having scheduled areas would need to cede in favour of the governor, legislative and executive powers indicated in the schedule. In para 5(1), the schedule empowers the governor to negate the application of or effect modification, in certain legislations of Parliament or state legislature, in respect of scheduled areas. Further, one cannot fail to notice the unusual provision of retrospective power in this context. Para 5(2) enables them to make regulations for scheduled areas, as for instance those relating to land and moneylending, though they have been asked to consult the TAC while doing so. In making them responsible for framing regulations for “the peace and good government” in scheduled areas in para 5(2) again, the power strikes as extraordinary.
In a number of cases, the Supreme Court has held that the powers exercisable by the governor under the Fifth Schedule are discretionary: Ram Kripal Bhagat v State of Bihar (1969), State of Meghalaya v Brhyien Kurkalang (1972), Samatha v State of Andhra Pradesh (1997), Bhuri Nath v State of Jammu and Kashmir (1997) and Madhya Pradesh Special Police Establishment v State of Madhya Pradesh (2004). The five-judge bench of the Supreme Court in Shamsher Singh v State of Punjab(1974) observed that only in the case of governors does Article 163 permit discretion. 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.
In 2011, the then attorney general is said to have opined that in performance of the functions and exercise of powers under the Fifth Schedule, the governor is not bound by the aid and advice of the council of ministers of the state. Earlier, in April 2001, the then attorney general, Soli Sorabji, had tendered the advice that “there is no provision in the Fifth Schedule of the Constitution which expressly empowers a Governor to act in his discretion independently or contrary to ministerial advice” (Bhuria Commission 2004: 60–61). However, it seems the majority opinion veers to the conclusion that discretion is vested in the governor for acting in consonance with the schedule’s provisions. A look at the praxis can clarify the state of affairs.
Legislation in Praxis
The facts are that the praxis (i) goes against “discretion” and (ii) that the governor’s discretionary powers have hardly been exercised. Incontrovertibly, in creating the Fifth Schedule, the object was and has been to make it a special instrument for the “welfare and advancement of the Scheduled Tribes” [para 4(2) of the Schedule], as well as for implementing the Directive Principle,
The State shall promote with special care the educational and economic interests … of the Schedules Tribes, and shall protect them from social injustice and all forms of exploitation. (Article 46)
It is relevant to quote the principal actor in this discourse—the governor. The second constitutional Scheduled Areas and Scheduled Tribes Commission 2002–04, also called the Bhuria Commission, of which the author was a member and for which he had the privilege of writing in major part its report, cited the report of the Committee of Governors (2001):
The present experience in all States is that the Governors have not exercised any significant role under the Fifth Schedule and whenever this has been so exercised it has been on the advice of the Council of Ministers. (Bhuria Commission 2004: 59–60)
The commission recorded that the committee sought the advice of the attorney general on the interpretation of the role of the governor. Having obtained the view of Soli Sorabjee mentioned above, the committee felt that there being no provision under the Fifth Schedule for the governor to act in his/her discretion, the relevant constitutional provision of acting on the advice of the council of ministers seemed to be binding on the actions of the governor under the Fifth Schedule. Nevertheless, they inserted the caveat that it was desirable to set at rest any ambiguity in the matter. The subsequent opinion of the 2011 attorney general, that in the performance of functions and exercise of powers under the Fifth Schedule, the governor is not bound by the aid and advice of the council of ministers of the state, is consonant with the majority judicial view. The following few paragraphs recapitulate the views of some implementing agencies and reviewing committees and commissions, highlighting the position on the ground.
In its 1960–61 report (volume 1), the first constitutional Scheduled Areas and Scheduled Tribes Commission, also called the Dhebar Commission, said that the scheme of administration of the scheduled areas under the Fifth Schedule visualises a division of responsibility between the state governments and the union government. The state government has to implement special schemes for the welfare of STs living within its boundaries, as well as schemes for their general development. The union government’s responsibility extends to providing guidance in regard to the administration of the scheduled areas and of additional funds (Dhebar Commission 1961: 39). Conspicuously, they omitted the role of the governor from their narrative. In substance, they seem to have implied that the scheduled areas have since independence been governed more or less on the same pattern as other parts of a Fifth Schedule state.
A recent unequivocal opinion was that contained in the report of the Bhuria Commission (2004: 61–62), influenced by the clause in Article 163(1), “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.” In their view, “there is a specific requirement of the Constitution for the Governor to act in the circumstances mentioned in the paragraph 5(1) and (2) of the Schedule” (Bhuria Commission 2004: 61–62). In his 28th report, the then commissioner for Scheduled Castes and Scheduled Tribes, B D Sharma, opined that the schedule makes special provisions for (i) broad and flexible frame for effective legal and administrative action, (ii) effective implementation of developmental and anti-exploitation programmes, and (iii) regular review of ordinary laws for adaptation for scheduled areas.
Governance Based on Schedule
In a consultation on the Fifth Schedule held by the Centre for Policy Research (CPR), New Delhi on 19 November 2012, recalling the observations of the Supreme Court, the late veteran journalist, B G Verghese (2012), opined that, “The Fifth Schedule has been bypassed and remorselessly breached in every sense,” enabling the spread of Naxalism. At the same consultation, the then secretary, Communist Party of India, A B Bardhan (2012), said that the Fifth Schedule had been disregarded not by mere oversight, but calculatedly. Based on experience corroborated by the committee of governors, in reality, post-independence, scheduled areas have been governed preponderantly by the administration of the scheduled area states, in accordance with the main clause in Article 163(1), either overlooking or ignoring or bypassing the powers of the governor in Part B of the Fifth Schedule.
Para 3 of the schedule represents a conjunct of four authorities, that is, the President, the union, the state government and the state governor. It consists of two parts. One is about the report of the governor to the President, regarding the administration of the scheduled areas in the state. There is no clarity about the extent to which the governor should be involved in preparing this report. In point of fact, the reports are prepared in the concerned state departments. The Dhebar Commission (1961: 47) observed that there was considerable scope for improving their quality. About four decades later, the successor Bhurria Commission (2004: 38) said that these reports often tended to be modified versions of the annual reports of the Department of Tribal Affairs.
The other part of para 3, that is, the power of the union to give directions to the state as to the administration of the scheduled areas, has largely lain dormant in practice. In fact, the Dhebar Commission (1961: 39) opined that in the scheme of administration of scheduled areas, the union government’s responsibility extends to providing guidance in regard to the administration of these
areas, as also for additional funds. It has not been clarified whether “guidance” would cover directions also. The then Central Tribal Affairs Minister, Kishore Chandra Deo, sent a representation dated 7 April 2012 to the Governor of Andhra Pradesh, against the grant of mining leases in the scheduled areas of the state. Having received a reply that the governor had referred the matter to the state government, he had his ministry send formal directions under para 3 of the Schedule, for the revocation or cancellation of the memoranda of understanding and mining agreements, following it up with a demi-official letter to the chief minister (Deo 2012). He had not received a reply even by the time of the consultation in which he narrated this incident.
With reference to sub-paras 2 and 3 of para 4 of the schedule, the original intention seems to have been to make the innovative TAC an instrument of the governor’s moves towards the welfare and development of the STs. Backed by the perspective and clout of a number of other relevant provisions in the Constitution, the TAC had the potential of becoming a critical vehicle of conveyance, for imposing upon the state secretariats the felt needs of STs living even in remote, isolated, hilltop hamlets of 10 or 15 or such small number of families each, like the Juang or Kutia Kondh of Odisha. Rejection of the amendments proposed by some Constituent Assembly members enfeebled the TACs and the infirmity of the TAC is perceptible now.
First, its horizon of discussions is cramped by limiting it to matters referred to it by the governor (para 4[2]). The Dhebar Commission (1961: 58) advised that its members should be enabled to bring up any matter concerning the welfare and development of STs in scheduled areas for consideration. That has also been the refrain of the recommendations of the Bhuria Commission (2004), several committees and working groups. Second, as of now the TAC’s consultation has been sought only in para 5(5) of the schedule, whereas its advice should have been available to the governor in the matter of central and state laws in sub-para 5(1), and in framing regulations in sub-para 5(2). These two issues were raised in the form of amendments during the Constituent Assembly debate, but they received no positive response. The result has been that the nominated governors have been deprived of access to the advice of the TACs. The councils have been falling into dysfunctional debility as per the report of the Bhuria Commission (2004: 48), and as per the experience of the present author who functioned, in the first instance, as secretary in the tribal affairs department and subsequently as secretary to the governor, both in Odisha, in the 1970s.
The satisfaction that the tribal people would have derived from the active participation of their representatives in a TAC, would have helped diffuse the indignities of poverty, growing alienation and simmering anger among them and, in addition, stemmed sliding backwardness, socio-economic disparities, discontent and violence, in many scheduled areas in the country. Thus, the constitutional letter and field praxis do not match with each other. There is a critical view of contrarians expressed at the above-cited CPR Consultation, by its then president
P B Bhanu (2012), which slammed the Fifth Schedule as a “bad law,” as also that regarding the governor as a panacea would be a “constitutional absurdity” in a democratic polity.
Though the amendments suggested by some members during the Constituent Assembly debate were not accepted, the schedule was retained in the constitution as a vehicle for “the welfare and advancement of Scheduled Tribes.” Its constitutional sanctity and enhanced potential (as a result of changes being suggested here) are likely to enable the country’s democratic set-up to fulfil the constitutional and moral obligation of helping STs to move up the social ladder from the bottom rung. The depth and amplitude of social, cultural, economic, educational and political disparities between the vanguard and the rearguard societal segments have created stresses and strains, retarding national and tribal progress. Considering the lowly station in which the STs have been placed all along, the schedule can help narrow the gap for inclusive national progress. The late Supreme Court Chief Justice J S Verma (2012) echoed the idea at the CPR Consultation, when he said that the core issue is how best we can make the Fifth and Sixth Schedules work and, since there is agreement that the tribals are an exploited section of our population, how can we do what we need to do, with the existing provisions.
Suggestions for Improvement
Considering the debate in the Constituent Assembly, it appears that overall, in envisioning a future democratic polity, two currents appeared to flow among the members of the subcommittee: (i) representing the majority, of a “sacred trust” in the provincial governments, lacking salience on the special needs of the STs; (ii) rooting for an empowered advisory structure in the schedule, held by a minority of members led by Jaipal Singh.
The former prevailed, giving birth to the present Fifth Schedule. The Samatha judgment of 1997 assembled the pieces together, giving it a constructive, holistic interpretation. Commenting on that judgment, eminent lawyer Rajeev Dhavan (2001) observed that it was no less significant than the 1992 Mabo judgment in Australia, and that it breathed new life into the limping Fifth and Sixth Schedules. However, despite the directions given in it to undo the injustices of history, it was soon forgotten. The schedule needs some reformation. Even limited reformative changes in the schedule indicated in the following paragraphs can spur tribal advancement, as well as assuage tribal anger and resentment, particularly in violence-ridden tribal areas. It needs emphasis that these changes do not require constitutional amendments in terms of para 7 of the schedule, and parliamentary enactments would do.
The Planning Commission’s Working Group on Development and Welfare of Scheduled Tribes during the Eighth Five Year Plan, recommended that the central government should direct the state governments to frame regulations for ensuring peace and good government of these areas (Ministry of Welfare 1989). As chairman of the Eleventh Five Year Plan Working Group on ST Empowerment, the present author in his report stressed that the role of TACs, conceived as an advisory chamber to the governor [para 4(2)], needs to occupy a central place. The councils should have the freedom to discuss in meetings all the matters they consider relevant and important. This has been repeated by working groups and committees. Attention towards the TACs’ strengthening and functionality should be prioritised. As recommended in the report of the Dhebar Commission (1961), within the limit of the numbers prescribed in para 4(1) of the schedule, the councils might be enriched if some well-meaning and experienced activists, proponents, etc, of the tribal cause, whether STs or non-STs, are accommodated as members. Also, the governor’s report to the President should be regular and meaningful.
In the scheduled areas, the vintage TAC structure of the Fifth Schedule and panchayats’ structure of Article 243M will be mutually fortified, if the TACs act as bridgeheads between the zilla parishad(s) and the state government. Monitoring the implementation of the two central legislative enactments, that is, the provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996, and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, whose provisions impinge vitally on the lives of the STs, should be a special charge of the TACs. In most states, the TAC is chaired by either the chief minister or the departmental minister. That sidesteps the role prescribed by the schedule for the governor “to promote with special care” tribal interests, mandated by Article 46. At the CPR Consultation, the then Central Tribal Affairs Minister Kishore Chandra Deo (2012) emphasised that, “unless the Governors are prepared to act and understand their role, is there any point in having these powers thrust upon them?”
If both the governor and the chief minister can be brought on board together, the former as the chairperson and the latter as the vice chairperson of the TAC, harmony, coordination and acceleration in administrative moves towards the “welfare and advancement of the Scheduled Tribes” are likely. Since the governor has been cast in a pivotal role in the Fifth Schedule, logically, the secretary to the governor should be appointed as the member-secretary of the TAC. The presence of the chief secretary at the meetings of the TAC as a member would contribute towards the promotion, coherence and coordination of policies and the implementation of programmes, particularly in the context of prevalent tribal unrest.
Concluding Remarks
As one looks around, it seems that there has been scarce literature on the Fifth Schedule. We have seen above that in the eyes of contrarians, the schedule is anomalous and anachronic in this democratic age. On the other hand, the late Chief Justice Verma put the matter in perspective when he said that there is a general agreement that the STs are exploited people, and may I add, the most depressed segment of Indian society, demanding special attention. The expressed perceptions, of some mature and well-meaning public figures like Rajeev Dhavan, B G Verghese and A B Bardhan, based on their observations and experience, have also not been taken seriously. The device of the Fifth Schedule was crafted to pull the tribals out of the age-old quagmire of deprivation and exploitation.
So far, by way of its utilisation, the effort has been limited to spelling out recommendations for the operationalisation of the provisions of the schedule. Even these have remained sealed in some written reports and articles, and at times in oral advocacy. In the overall context, it is difficult to make an appraisal of the contribution the Fifth Schedule would have made to the progress of tribals, had its provisions been implemented as per the Constitution’s letter and spirit. It is probable that given an amended schedule as suggested hereinbefore, it can become a useful instrument. The ground realities are diverse and may not always be concordant. “Peace and good government” are the prime prerequisites for all that has been conceived as indispensable for scheduled and tribal areas, that is, the continuation of the ST communities’ hold on their natural resources, full-scale implementation of the protective and promotive constitutional provisions and other legal measures, freedom from exploitation and injustice, just entitlements, preservation of identity, culture, language, etc. Hence, good governance and peace, the gospel of the Fifth Schedule, need to be ushered in, in full measure to enable the STs to march forward.
