{EPW Ref- 686/2013} Farce of Fifth Schedule Nears End B. K.

Manish [An independent communicator and Tribal Rights activist from Chhattisgarh; he can be reached at cgtribal@yahoo.in] [Abstract- After so much debate over Fifth Schedule in last three decades, and especially since enactment of PESA in 96, this segment of Constitution remains an unsolved riddle; no jurist from Supreme Court bothered writing a dedicated book on the subject. Now, the TAC Case in Chhattisgarh High Court is forcing leading actors to explain their positions on certain crucial aspects beyond the courtroom thus helping clear vision as to where lie the impasse in Fifth Schedule debate. An attempt is made in this article to use the insights from the case in propounding on the philosophy underlying this provision and transition of the same.] Union of India stating in a written submission that Governor has no discretionary powers under fifth schedule has enraged tribal rights activist across the country. As a national newspaper 1 (Indian Express, 26 Feb.) reported, Union of India was responding to a notice issued 2 on 19 Nov. 2012 by the Chhattisgarh High Court, in a PIL filed by screenwriter-turned- tribal rights activist B. K. Manish. The case has nearly eluded attention of national media but the news triggered a flurry of angry responses from far ends. This case relates to alleged unconstitutional functioning of TAC in the Chhattisgarh state but the Chief Justice upon his own volition asked the Assistant Solicitor General, Mrs. Fouzia Mirza to explain Unions position. Consequently, she formally submitted that Fifth Schedule of the Constitution is also a part of the Constitution and can not be interpreted by forgetting the other provisions in the Constitution. It is impossible to visualize complete segregation of the Fifth Schedule from the rest of the Constitution, and thus general principle of Governor acting only on the aid and advice of council of ministers applies here too. Activists find this position of Union running contrary to the line taken by Supreme Court consistently since 1997; first in Bhuri Nath Vs. Govt. of J&K3, and more famously later same year in Samata Case4, and therefore allege that Union is simply washing its hand of the issue by saying it would concur with whatever stand the state of Chhattisgarh takes in the court. Former Secretaries to the Government of India EAS Sarma and Bhupinder Singh took strong exception to the fact union minister of tribal affairs was not even consulted in the matter. On Tuesday, 12 March, the Chhattisgarh High Court finally dismissed said PIL soon after the State filed its second counter-affidavit, without going for customary Final Hearing. The decision is largely inspired by Union of India's same submission that Governors don't have any discretionary powers under Fifth Schedule, besides a submission from one of Indias youngest Amicus Curie. Petition had contended that Chhattisgarh TAC (business) Rules, 2006, are unconstitutional as it installs the Chief Minister as the Chairperson thus allowing him to not just set the agenda of the meeting but also to take executives decisions therein, in clear violation of para 4(2) of fifth schedule which stipulates that TAC would advise on such matters as may be referred to it by the Governor. Petitioner had pointed out in his rejoinder that presence of CM in TAC has long been resented by tribal rights activist, and has even been termed against principle of natural justice since the fifth schedule with the Governor as its central figure is generally regarded as an alternate, remedial administration scheme for scheduled areas and scheduled

tribes. But the High Court rejected the contention of petitioner that usurping of TAC by the provincial government has subverted not just the intended mechanism of TAC but the fifth schedule itself, and accepted the contention of the State that nothing prevents TAC to take up matters suo motu in the meeting without a reference from the Governor. In May 2010 when the then Home Minister P. Chidambaram forwarded to several Governors the written opinion of Attorney General Vahanvati5, to the effect that powers of Governor under fifth schedule are discretionary, political motives were looked for behind it notwithstanding the pleasant surprise. The turnaround now by the Union thus brings about the circle, close on the heels of quiet burial of PESA upgrade program of National Advisory Council released late last December. It also presents a great opportunity to encapsulate in as many words the transitional, underlying administrative philosophy instead of normative debate on form of the protective constitutional provisions and lacunae in implementation thereof. A whole new interpretation of Fifth Schedule came out of this PIL which continues to excite ever more stakeholders in Research Institutions, Think-Tanks and mass movements. It corrected some of key postulates of the normative debate on the basis of underlying administrative philosophy expressed most prominently by KM Munshi6 in his concluding remarks in Fifth Schedule Debate in Constituent Assembly on 5 Sept. 1949, and in celebrated book of Verrier Elwin- A Philosophy for NEFA7. Interestingly, the opportunity to question this intrinsically anti-Adivasi, administrative philosophy was missed narrowly by Dr. Bhupinder Singh in 1984 when he conjectured in the Planning Commission that Fifth Schedule is paternalistic in nature while Sixth Schedule is more amenable to self-rule8; his imposing contemporaries Dr. BD Sharma & Prof. BK Roy Burman completely squandered it over next two decades through their campaigns of PESA and import-sixth schedule respectively. Even the fabled Samata Judgement opened on the note of revisiting philosophy but quickly veered away into form and failed to state the crux of the matter in as many words. Samata Judgement ignited a real interest in the history of Fifth Schedule which was till then dealt in a focused manner only by the likes of Devendra Thakur 9 (1995), P. L. Mehta10 (1991) and more famously Dr. B.D. Sharma11; the great jurists like Basu, Seervai, Jain, Swarup-Singhvi, Datar and Kashyap avoiding any effort of original thinking over it in their celebrated commentaries of the Constitution. It was Dr. B.D. Sharma who started the critical analysis of fifth schedule by crossing over from his domain of administration and imbibing from history, anthropology & legal interpretation with the flair of an activist. Due to his positional advantage and unusual zest, he managed to become synonymous with fifth schedule, even camouflaging his colleague and the only original thinker on the subject, Dr. Bhupinder Singh. Although Prof. B.K. Roy Burman12 also provided a whole new spin of his own to the basic conjecture of Dr. Bhupinder Singh, of fifth schedule being paternalistic in nature while sixth schedule being more amenable to tribal self-rule13, the IAS-factor outweighed in favour of Dr. B.D. Sharma. Indeed it was prolonged skirmishes14 of one-upmanship between these giants of bureaucracy and academia which prevented all opportunities of recognition of underlying philosophy of fifth schedule resulting in unabated dispossession of adivasis even as these giants consumed huge resources for their campaigns of PESA and importing Sixth Schedule respectively.

Much has been written about colonial outlook on tribals and especially the role of numerous uprisings in making of this outlook. Direction of colonial thinking has been looked for in and determined from the texts most prominently of Agency Areas Act 1839, Scheduled Districts Act 1974, Morley-Minto Reforms 1909, Montesque-Chelmsford Report 1918 and Government of India Act 1919. Elwin and followers in his mould also brought to focus 15 the various reports of regional bureaucrats, Census Reports 1901-1941, House of Commons Debates and numerous gazetteers. Most visible form of this sustained yet progressive outlook is recognized as the Government of India Act 1935. The philosophy of alternate, protective governance mechanism prevalent before enactment of The Constitution of India could be expressed in a nutshell thus- A] Fate of tribals can not be entrusted to the legislature dominated by their immediate provincial neighbours. B] Put a judicious outsider completely in charge to ensure he doesn't have any personal stake in it; in other words an objective, empowered authority. C] Give the Governor eyes & ears of tribal sensibility. Interestingly, while the opposition of Indian National Congress to Prime Minister McMillans Communal Award in 1932 and GoI Act 1935 are well documented in tomes of party-history and administrative history16, the fact has been conveniently forgotten that nearly all the pillars of Congresss so-called course-correction in its tribal engagement policy as it evident from Constituent Assembly Debates were erected in Simon Commission Report 17 of 1930 itself. For all practical purposes, tribal policy of Govt. of India is a cumulative vision of Simon Commission, Cabinet Mission and Thakkar Sub-Committee 18. This vision can be expressed in a nutshell thus- A] Tampering the application of general legislations in view of special needs of the scheduled areas & scheduled tribes as also finance for their special development programs to be provided for in a swift, simple, non-elaborate manner. B] Provincial governments to own up the responsibility of closing the development gap between the scheduled areas-scheduled tribes and the general classes, with the Union to play an active supervisory role for the same. Closing remarks of K.M. Munshi in Constituent Assembly in debate 19 over Fifth Schedule on 5 September 1949 is generally recognized as the formal expression of the shift in tribal engagement policy from Raj to Swaraj. Although parts of this speech have become repugnant in view of the emergence of anti-assimilation plank in the intervening six decades, the bureaucracy has diligently followed this outlook. Recognizing the firmness of Munshis speech which ensured that the revised draft of Fifth Scheduled was passed by the house without a single amendment it becomes apparent that the real cause of confusion in understanding of fifth schedule is created by the lack of clarity on the very scheme of Governor in chapter six of The Constitution. Analysis of Constituent Assembly debate on the subject 20 clarifies that the present scheme of a nominated Governor reflects neither the recommendations of Joint Committee headed by Vallabhbhai Patel, nor the wishes of drafting committee. Further, while the provincial diarchy ended with the enactment of the Constitution, the special powers with regards to scheduled areas as were accorded in GoI Act, 1935, remain on the book despite the fact that the practical & moral authority to exercise these powers is gone. Ambedkar failed to mention in constituent assembly during the entire debate on chapter six 21 spread over 30 May-2 June 1949 the fact that one of the most important application of the discretionary powers being given to the Governor is in Fifth Schedule which has led to several subversive observations by Supreme Court22 and Attorneys General23 which the former corrected for good only in 1997 (first in Bhuri Nath Vs. Govt. of J&K and later in Samatha Vs. A.P.) and the latter only in April 2010. Due to

flawed constitutional scheme on Governor, insofar him being a purely nominated functionary, he somewhat lacks the democratic moral authority to exercise the almost extra-constitutional powers vested in him under para 5 of Fifth Schedule. Because the tonality of terms like absorption24 and assimilation were deemed somewhat incompatible with democratic ethos notwithstanding the nationalistic ferver of the Independence, for the purpose of discourse a more protectionist reading & implementation of fifth schedule was advocated, characterized by Nehrus Panchsheel Policy, elucidated not in an official declaration but as a foreword of a book25 by the anthropologist and his tribal affairs advisor Verrier Elwin. Nehru also urged the Lok Sabha while speaking on an amendment to Article 15 not to read the protectionist portions of the Constitution very narrowly 26. No effort was made to find or amend the structural flaws of fifth schedule in early decades because the executive sincerely believed that focused planning and persistent thrust from the top would soon ensure substantial integration of the tribals in the mainstream and fifth schedule could be done away with; U.N. Dhebar Commission stated27 as much. This cosmetic dressing of verbal nature slowly gave rise to an alternate, liberal interpretation of an unclear text which is diagonally opposite from that of the apparently nationalist framers of the text. This liberal interpretation has been gaining ground in the face of large scale dispossession of tribals in last two decades. Even the governments no longer counter the fact that tribals have bore the brunt maximum for the so-called development with the President saying as much in his 2001 Republic Day-eve address to the nation- Let it not be said by the future generations that the Indian Republic has been built on the destruction of the green earth and the innocent tribals who have been living here for centuries28. It is this emotional thrust which has prevented the critical analysis to check the soundness of PESA campaign and Import Sixth Schedule campaign even after two decades of frustration. The higher judiciary too is consistently espousing the cause of such desperate yet well-meaning activism at every possible opportunity. Consequently the Supreme Court also shares today the frustration of the activists over non-implementation of fifth schedule and the failure of both campaigns aforementioned. Rather harsh remarks29 over pervasive ignorance of Unions counsels of the fifth and sixth schedule, from a Supreme Court division bench led by Justice A.K. Patnaik on 3 October 2012 as an aside in Tiger Reserve Case underscore this point. Centre for Policy Research was quick to hold a national seminar based on this observation on 19 Nov. in New Delhi which was attended by union minister for tribal affairs among others. This gathering concurred with the observation of Supreme Court and lamented at length the non-implementation of fifth schedule, based on their outlook. Yet it could not be recognised that mentioned frustration emanates from the fact that while the Supreme Court validated a few aspects of liberal interpretation, like the powers of Governor being discretionary, the underlying philosophy of fifth schedule as formulated in 1949 continues to hold ground. It is also overlooked that till date no High Court or the Supreme Court had the opportunity to pass orders on fifth schedule for the simple reason that before the B.K. Manish Vs. State of Chhattisgarh case, almost no case 30 directly involving fifth schedule ever came up for hearing. One wonders why the Adivasi Question was not approached from the perspective of much simpler intermediary of form and substance, the underlying administrative philosophy. It appears

Elwin was aware of the importance of philosophy for he put it in the very title of the book besides mentioning it in the very beginning of its preface but closer scrutiny shows that he kept hopping from socio-political vision on one end to the statutory-executive provisions on the other, without stopping at the high midlands; not just in this book but also in the report he wrote as secretary to the UN Dhebar Commission. Academics, bureaucrats, politicians and journalists all took their cue from Elwin so the administrative philosophy remained out of print. It is worth noting that Adivasi intellectuals like Ramdayal Munda31 and Virginius Xaxa32 came tantalisingly close in their incisive critique of statutory-executive provisions and socio-political vision respectively to the terrain of administrative philosophy yet stopped short of dissecting it. Understandably, both the professors overestimated Adivasi Assertion as is evident from consistently worsening state of realization of constitutional rights in their home-state Jharkhand and Chhattisgarh; yet the emerging idea of insisting on redemption in actual terms of Nehrus pledge of letting tribal people grow according to their own genius and tradition 33, of the call for an indigenous peoples vision document on Education, Culture and Livelihood 34 traces its lineage to them. One of the real contributions of the ongoing PIL is that it has helped put down the philosophy of the liberal interpretation in as many words- A] all functions of Governor with regards to fifth schedule are discretionary, and it means that he is independent of the aid and advice of not just provincial council of ministers but in respect of paras 4(2), 4(3) and 5(1) he is also independent of the directives of Union. B] Governors discretionary powers are intended as empowered safeguard for tribal interests against omissions and commissions of popularly elected governments both in the State and the Centre, since democratic validation can not be an excuse for crushing the disadvantaged classes. C] At least in states having scheduled areas the pledge of selecting individuals known for erudition and independence as Governors would have to be redeemed instantly; virtually denying security-defense professionals. Emerging consensus is that the Constitution Bench of Supreme Court shall validate the abovementioned philosophy in due course in the cherished tradition of doctrine of progressive interpretation, but the path to that ultimate ruling is fraught with hindrances placed by the entrenched ruling classes opposed to tribal autonomy, much like the present affidavit of the Union of India in question. For the chronically optimists steadily increasing realization among the academia and civil society of the joint responsibility to contribute voices and writings to counter the reigning rhetoric and the cynicism brings succour. -------------------------------------------------------------------References & Footnotes1. Centre flip-flops on Guvs powers under Schedule V. Ashutosh Bhardwaj : Raipur, Indian Express, Tue Feb 26 2013 2. Chhattisgarh HC seeks Centre's stand on governor's powers under fifth schedule, Tribes Council Joseph John, TNN, Times of India, Bhopal. Nov 20, 2012 3. Bhuri Nath Vs. State of J&K- (1997) 2 SCC 745, para 25 4. Samata Vs. State of A.P.- (1997) 8 SCC 191, para 173 5. Centre may take over control of tribal areas. Subodh Ghildiyal, TNN, Times of India, New Delhi Nov 5, 2010 6. Constituent Assembly Debates. Book-4, Vol.IX, Lok Sabha Secretariat, Reprint 2009, Pg. 999 7. A Philosophy for NEFA, Elwin Verrier, 1957. Reprint 2009- Isha Books.

8. Report of the Working Group on Development of Scheduled Tribes during the seventh Five-Year Plan (1985-90, Pg.12) 9. Tribal Law and Administration. Ed. Thakur Devendra, Thakur DN. 1995- Deep & Deep Publications. Most early papers of anthology written around 1981. 10. Constitutional Protection to scheduled Tribes in India. 1991- HK publishers & Distributors 11. Tribal Affairs in India- The Crucial Transition. 2001- Sahyog Pustak Kutir. Earlier printed under title-The Fifth Schedule 12. Fifth Schedule of The Constitution and Tribal Self Rule. Indian Journal of Social Work. Vol. 67, Issue 3, July 2006 13. Ibid 8 14. Ibid 12. Ibid 11 at pg. 166, 205 15. Tribals and the Indian Constitution. Behura NK, Panigrahi Nilkantha. 2006-Rawat Publications 16. Indias Constitution in the Making. Rau BN, 1960. Pg. Xliii. Also, In Framing of Indias Constitution, Ed. B. Shiva Rao, First Edition 1967, reprint 2005, Vol-II. Universal Publications. 17. Report of The Statutory Commission, 1930, Vol.II, para.127. Quoted in In Framing of Indias Constitution. IIPA-1967. Vol. V, Pg. 569 18. Ibid. Select Documents-III, 7(iii) at pg. 733, 763 19. Ibid 6 20. Constituent Assembly Debates. Book-3, Vol.VIII, Lok Sabha Secretariat, Reprint 2009 21. Ibid 22. Mansingh Surajsingh Padvi Vs. State of Maharashtra- (1968) 70 Bom LR 654. Shamsher Singh Vs. State of Punjab- AIR 1974 SC 2192, (1974) 2 SCC 831. Edwingson Bareh Vs. State of Assam- AIR 1966 SC 1220 23. Opinion of then Attorney General Soli Sorabjee, quoted in Report of Bhuria Commission, 2004, Vol-I, Pg.60 24. Ibid. 16 25. A Philosophy for NEFA, Elwin Verrier, 1957. Reprint 2009- Isha Books. 26. Speech in Parliament on 18 May, 1961. Quoted in- Nehru and the Tribals. SS Sashi. Concept Publications, 1990. Pg.59 27. Report of The Scheduled Areas & Scheduled Tribes (UN Dhebar) Commission, Manager of Publications. 1962 28. Ibid 8. Pg. 207 29. Naxalism a result of an oversight of Statutes, Says SC. Utkarsh Anand. 3 Oct., 2012. Indian Express. New Delhi. 30. Cases like Ram Kirpal Bhagat, Samata, Rakesh Kumar, Balco etc. were essentially contentions of Customs Law, Land acquisition, Reservation in Panchayat and therefore had limited reliance on fifth schedule 31. Development Programmes and the Tribals, In (Ed.) Singh B., Mohanti N., Tribal Policy in India, Inter-India Publications. 1997 32. Politics of Language, Religion and Identity: Tribes in India, EPW, March 26, 2005. Tribes As Indigenous People of India, EPW, 1999 33. A Philosophy for NEFA, Elwin Verrier, 1957. Reprint 2009- Isha Books. Pg.11 34. Justice for Peace, Manish BK. In PUCL Bulletin, Feb.2013.