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Books written by B G Verghese

Books written by B G Verghese

Books written by B G Verghese

End-year reports suggest that the Naxals are regrouping in Maharashtra while not losing steam elsewhere and are penetrating deeper in Assam. A few months ago, they threatened tribal leaders in Gadchiroli who had commenced a successful non-violent Gandhian movement for winning back their traditional community forest rights.

Tribal Safeguards Remain in Limbo

And so it continues: the blatant rape by the Central and State governments of tribal constitutional rights embodied in the Fifth Schedule as a solemn social contract.

By B G Verghese

23 December, 2012

End-year reports suggest that the Naxals are regrouping in Maharashtra while not losing steam elsewhere and are penetrating deeper in Assam. A few months ago, they threatened tribal leaders in Gadchiroli who had commenced a successful non-violent Gandhian movement for winning back their traditional community forest rights. The village of Mendha-Lekha led the way. Others followed by empowering gram sabhas to establish gram swaraj as embodied in an elaborate code of governance set out in the Fifth Schedule and elaborated under the Panchayats (Extension to Panchayats) Act, 1995, or PESA which, between them, constitute India's Tribal Charter.

Mendha-Lekha challenged Naxal supremacy. Followed a warning to their leaders against "waylaying tribals from the path of conflict" for trifling rights to minor forest produce instead of struggling for larger rights to jal, jungle, zamin. Jairam Ramesh, Rural Development Minister, who extolled this initiative in shutting out the Maoists, was criticised by the latter for acting against true tribal interests in concert with corporate interests and corrupt local leaders!

And so it continues: the blatant rape by the Central and State governments of tribal constitutional rights embodied in the Fifth Schedule as a solemn social contract. Ignorance combined with crass indifference has marked the attitude of all administrations across political labels since Independence. Nudged by reminders and protests to live up to its dharma, the Government in 2010 announced the constitution of a National Tribal Advisory Council under the Prime Minister, with all concerned Ministers and Chief Ministers of 5th Schedule States as members, in order to take stock of the ground situation, guide future action and monitor progress. What happened?

In reply to a Question asked by H.K. Dua in the Rajya Sabha on December 6, 2012, the Minister of State for Tribal Affairs replied:

(a): Till date no meeting of the National Council for Tribal Welfare constituted under the Chairmanship of Hon’ble Prime Minister has been held.

(b): In accordance with the Para 4 (1) of the Fifth Schedule to the Constitution, Tribes Advisory Councils (TAC) shall be established in the States having Scheduled Areas therein. The relevant areas of the States of Andhra Pradesh Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan are covered under the Fifth Schedule to the Constitution. The Fifth Schedule to the Constitution enjoins upon the Governors of these States certain responsibilities and powers.

(c): As per the information available in this Ministry, the Chief Minister of the States are the Chairpersons of the TACs constituted in the States of Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra and Odisha. The Ministers of Tribal Welfare Departments in the States of Andhra Pradesh and Rajasthan are the Chairpersons of the TACs in these states".

The reply confirms constitutional violation, stark negligence on the part of the concerned Governors, usurpation of the duty and powers of Governors to preside over Tribal Advisory Council meetings by Chief Ministers and State Tribal Affairs Ministers, and helplessness compounded by total apathy on the part of the Government of India and Parliament. What can be done?

The Courts have begun to murmur against such official dereliction, mostly through obiter, but gradually taking the substantive issue on board, even if only tangentially in the absence of any direct suit against the authorities responsible. A Consultation of Concerned Citizens on the Persisting Violation of the 5th Schedule under the auspices of the Centre for Policy Research in Delhi last month brought together scholars and past policy makers to review the situation. It was a sorry stock taking.

The new Tribal Affairs Minister, Krishna Chandra Deo has left no stone unturned to bring matters to the notice of all concerned, Central and State, pointing out that sheer neglect has resulted in rising Left Wing Extremism. Letters have been addressed and directives issued by the Ministry under relevant sections of the Fifth Schedule and PESA but to no avail. They have been contemptuously set aside.

At one time it was argued that even under the 5th Schedule, Governors had to act as Governors-in-Council and not as independent executive authorities reporting directly to the President of India. Following a query raised at the annual Governors' conference in 2008, the President referred to the matter for expert legal advice. The Attorney-General duly examined the matter and opined in writing that "in performance of the functions and in exercise of the powers under the Fifth Schedule, the Governor is not bound by the aid and advice of his Council of Ministers". Nevertheless, nothing has changed and Governors have failed to exercise their inherent, independent power for peace and tranquillity, better governance and development of the scheduled areas.

The Delhi Consultation confirmed that the required annual reports of Governors were not being regularly made, or in time, and were not acted upon in any manner. PESA has not been applied to urban areas – a huge gap – while the notification of clusters of villages as gram sabhas with powers to administer customary laws, land acquisition, resettlement and rehabilitation, mining, minor forest produce, sale and consumption of liquor, control of money-lending and markets and oversee social sector institutions, remains incomplete. State Acts are not PESA compliant.

The Tribal Affairs Ministry is urging the establishment of a cell in the Governor's Office specifically to handle Fifth Schedule responsibilities. This would be most desirable, as would a dedicated cadre of officials to administer scheduled areas and the institution of a field based, single-line or single window administration. The prematurely-abolished Indian Frontier Administrative Service could serve as a model, with appropriate modifications.

Two other issues came up at the Consultation. First, the Scheduling process is itself defective with significant tribal areas/populations excluded from such notification. Secondly only nine states have Fifth Schedule Areas. This excludes Tamil Nadu, Kerala, Karnataka, West Bengal and Uttar Pradesh, all of which have significant tribal belts.

Secondly, many questioned whether Governors could or should be entrusted with Fifth Schedule guardianship considering that, barring exceptions, they are often ill-selected and sometimes decrepit and partisan party hacks or possess a law and order/security background. The role some Governors have played as ex-officio Chancellors of State Universities is a not encouraging. Better selection of Governors and providing them with an Instrument of Instructions defining their Fifth Schedule responsibilities and a high-powered, specialised Secretariat to assist them discharge these obligations may be one answer.

Let the 2013 Budget Session mandate a full day debate in each of the two Houses on the working of the Fifth Schedule on the basis of a Special Message from the President. This should be followed by consideration of such recommendations as might emerge by a meeting of the so-far abortive National Tribal Advisory Council and, thereafter, a special Governor's conference on the Fifth Schedule to be convened by the President. All this should be completed by March, notwithstanding budgetary and other legislative business. The fortunes of 100 million most deprived Indians and the nation's gravest security treat are involved, no less. No cleverly dishonest pleadings should be allowed to prevail to postpone such immediate action pending "preparations", "consultations" and suchlike humbug.

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