FIFTH SCHEDULE FOR DUMMIES What is Fifth Schedule?

An annexure emanating from Article 244(1) of The Constitution, its number being fifth in order among such annexures in the book, is called Fifth Schedule. Its title reads- provisions as to control and administration of scheduled areas and scheduled tribes. It applies to tribal pockets other than Assam, Tripura, Manipur & Mizoram. Essentially, it provides some shortcuts through Governor to avoid regular, multi-level legislative-executive processes.

Is Administration of tribal pockets to be run according to this Fifth Schedule? Supreme Court in a number of decisions has termed the Fifth Schedule as different scheme of administration but it is not clear whether this term different means additional, alternate or remedial; considering, general scheme of administration where council of ministers has all executive powers is also applicable in scheduled areas.

Why hasnt Fifth Schedule been implemented? It cant be said that Fifth Schedule has not been implemented; considerable activity has taken place under its operative parts- para 3 to para 7. Activists and community leaders feel that Fifth Schedule has failed to safeguard the interests of scheduled tribes as intended and therefore inadequacies in implementation are pointed out.

Why was Fifth Schedule included in the Constitution? Statutory protectionist measures were prevalent in princely states and were further accentuated under British Raj. Freedom struggle in early twentieth century saw protectionism merely as a measure of divide & rule tactics and therefore the thrust was on integrating the tribals into mainstream (sic!) still with a view to cushion the cultural shock, section 91 and 92 of Govt of India Act 1935, which provided for certain protections were retained in the form of Scd. V & VI in the Constitution of India, 1949.

What exactly is contained in Fifth Schedule? Fifth Schedule has seven paragraphs. First para states its area of applicability. Second para states that executive power of the state shall extend to the scheduled area therein subject to the provisions of this schedule. Third para says that Governor shall send a report on administration of scheduled areas annually or whenever President so desires, and Centre may issue directions to the state regarding administration of scheduled areas. Fourth para provides for establishing a Tribes Advisory Council, three

fourth of which would be tribal legislators. Fifth para empowers Governor to repeal or amend within scheduled areas an act passed by state legislature or parliament through a notification; and to make any regulations for peace and good governance of such areas, after consulting the TAC and to obtain assent of President before their application. Para six empowers that President to declare, increase, decrease or terminate the status of, Scheduled Areas, in consultation with respective Governor in certain cases. Para seven explains that even simple majority in the parliament can amend the Fifth Schedule.

Whats the controversy about the role of Governor in Fifth Schedule? Fifth Schedule as it reads today still revolves around Governor, as it did in GoI Act 1935, but the role and responsibilities of Governor have undergone radical changes in the Constitution, besides the severe political undermining and the serious harm caused by numerous rulings of Supreme Court to the dignity of the office of Governor, so its almost impossible for him to exercise almost extra-constitutional powers granted to him in Fifth Schedule. Statement of census commissioner of 1931 Mr. JH Hutton best sums up the logic of British (lack of statutory protectionist provisions may lead to mauling of tribals by their provincial neighbors), which reflected in Govt of India Acts of 1919 & 1935. Now, copying Art. 91-92 from GoI Act 1935 (crux of our Scd.V) was rather meaningless having already made two basic alterations. 1. Special protection was meant to safeguard tribals from absolute legislative power of their provincial neighbours so their affairs were marked as either 'reserved subjects' or as 'special responsibility', but our constitution eliminated dyarchy in provinces. 2. Governor was not just one half of Dyarchy but the powerful half on account of being Crown's representative as against Indian representative. On the subject of Governor in our Constitution Ambedkar completely lost it due to his ill-imagination; drafting committee went back from earlier consensus of having elected Governors to nominated ones and suggested a panel of names to be sent by the Provincial Assembly for President to choose from; this was not accepted and amid confusion house passed the resolution for a purely nominated Governor. With this, all theoretical and practical basis for tribal protectionism was gone. Activists blame the Governor for inadequate application of Fifth Schedule as he almost never took the initiative disregarding the council of ministers, but the advice of Attorneys General and rulings from numerous 7-judge, constitution benches of SC have held him back. Except, current AG and a few comparatively lighter recent judgments of SC have advocated the discretionary power of Governor under Fifth Schedule.

Why is there so much of confusion regarding interpretation of Fifth Schedule? Drafting of Fifth Schedule makes it rather contrived and illogical. As explained earlier, it is simply democratically inoperable due to inherent structural contradictions. National leaders had intended

fifth schedule to be a temporary measure and believed that rapid, targeted development will soon eliminate the need of it. Their naivet was completely exposed in two decades of Independence.

Justice M. Hidayatullah gave Scd.V & VI a big boost in 1964 by underlining their potential beyond the intentions of founding fathers, even terming them constitutions within a constitution in a documented lecture in 1979. Dr. BD Sharma took his cue from Hidayatullah and with help from a motely group of bureaucrats brought back fifth schedule at the policy center-stage in early 70s. He made big interventions in the course of formulating Tribal Sub Plan, and even managed to get the solitary amendment to Fifth Schedule regarding declaration on new scheduled areas passed through parliament during Emergency. Still, at the time of leaving IAS he was deeply dissatisfied with inadequate application of Fifth schedule and decided to blame Governors for it. After a while his group devised in 1996 a rather radical solution for tribal self-rule in the form of PESA which builds on the same platform but decisively shifts the emphasis from Governor to Gram Sabha. Bhuri Nath and Samatha judgments of 1997 validated discretionary power of Governor in Fifth Schedule and reignited the issue. In jumping back to the Governor angle, Dr. BD Sharma further confused the issue, as ironically enough, the two diametrically opposite provisions Fifth Schedule and PESA became synonymous simply because of his legendary association with both.

How is PESA related to Fifth Schedule? During working-group meeting of seventh five-year plan, Dr. Bhupinder Singh opined that Fifth Schedule is paternalistic in nature while sixth schedule is more amenable to tribal self-rule. BK Roy Burman lapped it up and ran a campaign for replacing Fifth Schedule with Sixth Schedule, especially in MP and Bihar. Dr. BD Sharma took a line that only the pattern of sixth schedule should be borrowed and after introducing further devolution of decision-making from District & Regional Councils to Gram Sabhas it should be applied in Scheduled Areas. His group thus actualized PESA through Bhuria Committee Report and 74th amendment to the Constitution. Greater understanding of eco-anthropology may help civil society realise how provisions like PESA & FRA are deeply anti-tribal. These Provisions have come from supposedly benevolent ex-bureaucrats with no understanding of tribal ethos- 'tempered urge of refinement'. Promoters of PESA dont realize that making Gram Sabha small senates enjoined for everyday administration is against the ingrained tribal ethos of simplicity and carefree, unencumbered living. Ironically, the idea behind PESA in this sense it still as colonial, for it too seeks to reform the tribal society. This simple fact needs to be realized that until forest departments were established in 1860s, tribals were only peculiar not backward; also, the so-called social-ills ascribed to them were indeed contracted from the settlers of mainstream, not due to their seclusion. Despite decades of onslaught of modern civilization after independence, animism remains a core value for a large part of tribal population for whom surroundings are not resources to be owned but beings to be equi-respected. With proven superiority of traditional forestry to that of modern forestry, granting pattas of small pieces of land instead of entrusting the tribals to grow wild

forests is an idea too smart by half. Similarly, the sustainability-fuelled revival of primitivism makes the continuing thrust on reforming or developing tribals extremely silly.

Why does the confusion on comparing Fifth & Sixth Schedules continue? Demand for replacing 5th Schedule with 6th is largely attributed to late Prof. BK Roy Burman, who even inspired Digvijay Singh to get such a resolution passed in MP legislative assembly before Mahendra Karma broke ranks and tanked the plan. In Jharkhand, whisperers attribute the credit for a similar sabotage to Dr. BD Sharma who was then National Commissioner for Scheduled Castes & Scheduled Tribes. Notion of tribals of north-east being better-off is the root cause of the confusion about superiority of Sixth Schedule. The mistake here is of disregarding the facts like treacherous terrain, famed aggression, history of military administration, predominance of tribals as against preponderance in mainland and the vocation of majority of settlers. Primary difference between two schedules is Tribes Advisory Councils at provincial headquarters as against District & Regional Councils. Practical experience of 73rd and 74th constitutional amendments has adequately proven, as underlined by Mani Shankar Aiyer, that devolution of power is a misnomer. Also, in Sixth Schedule Governor is empowered to overturn any decision of tribal-run, District & Regional Councils, in the Fifth Schedule Governor is empowered to overturn legislative-executive action inspired by non-tribal vested interest, on the advice of TAC.

Are the new models of tribal self-rule or tribal-autonomy necessarily beyond Fifth Schedule? All new models of tribal self-rule or tribal autonomy have one thing in common- frustration with Fifth Schedule. It is true that Fifth Schedule or its earlier variants are not really appreciative of tribal ethos or aspirations but it cant simply be wished away. Experience of PESA has taught us that even a bypass solution in terms of constitutional amendment passed without parliamentary discussion doesnt work because entrenched administrative philosophy remains unshaken. Fifth Schedule is a relic of incremental historical evolution of apprehensions and apathy of the ruling class towards Adivasis. Any new model of tribal autonomy will have to engage with Fifth Schedule, functionalise it, then deconstruct it to expose its shortcomings of structure, philosophy and vision through robust research papers and reports before it is debunked.

What can be done to make the Fifth Schedule Functional? Revival of TACs through model bylaws to make it non-partisan and auto-piloted would underline the constitutional dichotomy on protectionism and might thus intensify the tribal question in a practical manner. This would also force all wings of Indian state to shed the hypocrisy and insincerity over tribal

question and spare some energy for a fresh holistic assessment. Considering the complexity of policy mess this would require judicial intervention, executive streamlining and policy-rethink.