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Jamila Verghese

Some justice has been done to Sixth Schedule areas in the Northeast, but not to the far larger number of tribals living in Fifth Schedule Areas, in nine other States of the Union.

Constitution Defiled: Living in Sin

The Indian Supreme Court laments that States have ignored vital schedules in the Constitution, which has resulted in lack of social reform and the rise of Naxalism.

By B G Verghese

Deccan herald, 7 October, 2012

IN an extraordinary and most damning indictment of the Central and State governments, the Supreme Court recently complained that“nobody looks at Schedules V and VI of the Constitution and the result is Naxalism”. This was the result of what it termed oversight of constitutional provisions relating to the administration of scheduledareas and tribes of the country. A Bench led by Justice A.K. Patnaik observed that “urbanites are ruling the nation. Even several Union of India counsel are oblivious of these provisions”.

Why and how does this rape of the Constitution happen? How has every single authority responsible for honouring and executing the Fifth Schedule - successive Prime Ministers, Governors, Home Ministers,Chief Ministers, Tribal Affairs’ Ministers, Law Ministers, legislatorsand concerned officials, not to speak of the legal community, the media, academia and social activists – with some marginal exceptions, so singularly and consistently failed to abide by their oaths of office and perform their constitutional duty by the vast majority of Tribal India. Some justice has been done to Sixth Schedule areas in the Northeast, but not to the far larger number of tribals living in Fifth Schedule Areas, in nine other States of the Union.

Who cares? Some periodically weep copiously for the tribals but then wilfully obstruct much needed development, employment, income generation and social upliftment that could transform their lives for the better. Very few know or ask why they have been so cruelly and callously robbed of their rights ingross violation of the social contract the Founding Fathers solemnly made with them when the Fifth Schedule was crafted.

The humbuggery and charlatanism officially practised by the Indian State and well heeled “urbanites”, who rank among the highest and mostpowerful in the country’s governing order, is shameful, even criminal.None emerges unscathed. Much of the punditry piously aired officially and otherwiseabout stemming the rise and spread of Naxalism in tribal India issheer, self-serving piffle. But now, the Supreme Court, has inremarkably mild terms, proclaimed the unspeakable much like the littleboy in Hans Andersen’s famous fairy tale. As a consequence ofpersistent acts of “constitutional oversight”by its Keepers, the majestic cloak of protection and enablement provided them bytheFifth Schedule has been reduced to little more than a miserable fig-leaf.If the Court has found Union counsel to be in ignorance ofthe Fifth Schedule, who then is any wiser?

As a journalist of 60 yearsstanding I do not recall any Prime Minister, Home/Tribal Minister/Chief Minister, Governor, MP/MLA or any other concerned official or authority having ever raised his or her voice against the total disregard of this protective shield. The only exceptions have been some Commissioners for SC/STs, like the indefatigable B.D. Sharma, and a few social activists and administrators like B.N Yugandhar and S.B Munegaker of the Planning Commission whose reports categorically indicted the government for failing to observe constitutional proprieties vis a vis Tribal India. Their findings were smartly pigeon-holed.

What is one to make of this flagrant “constitutional oversight”? If Governments studiously violate the Constitution how can they tell the Naxals not to do so? What if “constitutional oversight” of fundamental rights, Presidential powers, federal principles, the judicial and electoral process and other key components of the Constitution were also to be consistently and deliberately subject to “constitutional oversight”? The result would be anarchy. But if tribal India is crushed by constitutional deceit, then does society just shrug its shoulders and say so be it.

Since the Fifth Schedule seems not have been read by most functionaries, one needs to explain its contents. The key element is the nomination of the Governor as the executive agent of the President, overriding the jurisdiction of state administrations, for the peace, tranquillity, development and good governance of 5th Schedule areas – which exist in nine states, and curiously exclude Kerala, Karnataka and West Bengal, all of which have significant tribal populations.

Section 3 of the 5th Schedule requires the Governor to make an annual report to the President regarding the administration of these areas “and the executive power of the Union shall extend to the giving of directions to the State” in this regard. In view of the guarantee of tribal rights and customary law, Section 5 provides that “the Governor may by public notification direct that any particular Act of Parliament or the Legislature… shall apply to a Scheduled Area” either wholly or in part “subject to such exceptions and modifications as he may specify…”, even with retrospective effect. Thus laws, rules and regulations considered good for Delhi or Raipur, are not necessarily assumed to be good for Dantewada. Further, the Governor “may make regulations for the peace and good governance” of a Scheduled Area”. He may in particular “prohibit or restrict the transfer of land” and regulate money-lending.

All such directions and regulations by the Governor shall issue after consultation with the tribal advisory council and shall require Presidential approval. By a change of rules decades back, the Chief Minister started chairing the TAC, thus reducing the Governor to a rubber stamp. How this was done and its constitutionality is questionable. Still later it was argued by some, and mutely accepted by the Government of India, that “Governor” in the Fifth Schedule, meant the “governor-in-council” acting on the advice of his council of ministers. This deliberate emasculation of the Fifth Schedule was finally raised in the President’s annual conference with Governors some years ago, whereupon the present.

Attorney-General gave a definitive ruling in writing stating that the Governor in Fifth Schedule matters enjoys executive powers and does not merely act a Governor-in-Council as as was the clear intent of the constituent assembly. Very few Governors know their duties under the 5th Schedule and fewer still have performed them. The TACs have been co-opted; the Governor has no instrumentality with which to execute his onerous and complex functions under the 5th Schedule. Who cares?

A powerful law, the Panchayat Extension to Scheduled Areas Act (PESA) was enacted in 1996 to empower gram sabhas. These have by and large been by-passed. Fifth Schedule districts are understaffed . Many officials do not know the tribal language. The administration is district headquarters-oriented and multiple departmental clearances are required under Section 52 (b) sub section 2a as amended in 1996 and again in 2003, or whatever. A poor illiterate tribal given to an oral tradition is expected to understand the gobbledegook that an urbane PhD would have difficulty in comprehending. No wonder that petty rent-seeking forest officials, liquor and minor forest produce contractors, and police, where they exist, rule the roost.

We are told that Naxalism is the greatest internal security threat faced by India – and we are determined to solve it with more law enforcers, selective budgetary allocations and recruitment of bright young administrators but without restoration of the constitutional, legal, administrative and moral framework whose deliberate abrogation caused the problem to arise in the first place. Policy making and political declarations have reached a level of monumental non-understanding and humbug at the highest levels, across parties. The Constitution is Dead. Long Live the Constitution!”.

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