A lame duck Schedule of the Constitution

The true potential of the Fifth Schedule was diluted right at its conception

 
By Bhupinder Singh
Last Updated: Saturday 04 July 2015

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Incontrovertibly, the object of creating the Fifth Schedule was to make a special instrument for the welfare and advancement of the Scheduled Tribes. It was formulated for the implementation of the Directive Principle that 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]. Backed by the perspective and clout of other relevant provisions in the Constitution, the Tribes Advisory Council (TAC) – constituted in scheduled areas under the Fifth Schedule—has had the potential of becoming a critical vehicle of expression of the felt needs of STs. But, whereas vibrant TACs could have stoked and energised tribal socio-economy, they got enervated at birth and have since been falling into There have been diverging interpretations of the Fifth Schedule by the Supreme Court and legal luminaries, creating confusion. However, its true potential was diluted right at its conception.

Constituent Assembly debate on Fifth Schedule
On 5 September 1949, B R Ambedkar, moved in the concerned committee of the Constituent Assembly a revised draft of the Fifth Schedule of the Constitution. To anticipate, the revised draft was passed. We have inherited it verbatim.

Ambedkar observed that the revised draft empowered a scheduled area governor to make any modifications in central or state laws and not be bound by the advice of his TAC, as was the case in the original draft. Secondly, he pointed out that the Drafting Committee had discussed the new Schedule with the concerned representatives of the provinces; since they all had approved it, he urged its acceptance.

The principal spokesman of the STs, member Jaipal Singh, reacted strongly against what he called secret talks among certain people, culminating in a sudden bomb-shell—the new Fifth Schedule. The original idea had been to make the TAC a proactive body, “to initiate, originate things”, but the new “proposed Fifth Schedule has…emasculated” it by placing the initiative in the hands of the governor. “That is a situation I cannot accept……. I as an Adibasi had and must have the first claim to be consulted in the proposed change.”

Out of the five amendments that Jaipal Singh moved, the more important three may be indicated. One, “administration” should be added to “welfare and advancement” in the template of advice assigned in the schedule to a TAC. Two, as mentioned by Ambedkar in the original draft, the governor was required to follow the advice of the TAC in exercising the extraordinary power of modification of central and state legislation. The new draft disempowered TAC, making the provision autocratic. In fact, member Muniswamy Pillay suggested making the advice of the TAC mandatory. Three, the governor should avail of the advice, and not merely consultation, of the TAC in making regulations. Though Jaipal Singh was supported in one way or another by members Yudhistir Mishra, Muniswamy Pillay, Jadubans Sahay, Shiban Lal Saksena, all the five amendments were shot down.

The rejection of the amendments has had two implications. First, the intention seems to have been to entrust the state administration control of scheduled areas, substantially scuttling the purpose of the Schedule, as indeed, has been the case in reality. Second, even consultation with the TAC was considered superfluous, meaning that the TAC had no relevance in the administration of Scheduled Areas. It further meant that a TAC composed of ST MLAs possessed little gumption to tender requisite advice and, as such, its role should be minimised.

Winding up the debate, the salient observation of member KM Munshi gives the crux of the Fifth Schedule as it was passed then, and as it stands now “… the sacred trust in respect of this step [regarding notifications when the Governor thinks a Central or State Act is not in the interest of tribals] is placed on the Provincial Government.” The debate where the speakers spoke sincerely and passionately, but in vain, seems to have had a conclusive pre-ordained script whose text brooked no alteration. One can picture Ambedkar, the Dalit messiah, acquiescing to a partially-baked Fifth Schedule.

Legal interpretations
The Supreme Court has interpreted the Schedule diversely. In a majority of cases, the judges leaned towards accepting the discretionary powers of the governor. But notably in Shamsher Singh vs. the State of Punjab, it held that such powers can be assumed to exist only where expressly spelt out in the Constitution. It is also interesting to observe the differing opinions of legal luminaries. Early last decade, Soli Sorabji opined that the Fifth Schedule does not uphold the independent discretion of the governor or contradict ministerial advice. His successor expressed an opposite view. Thus, the pendulum on the question of discretion has swung from end to end.

Way forward
Deplorably, the Schedule limits discussions in TAC to matters referred to it by the governor. This absurdity should be removed, conferring full freedom of expression on members. As kingpin of the Schedule, advice of the TAC should be regarded as quintessential, and provisions should be made for it.

TACs in scheduled areas should be interposed as bridge-heads between zilla parishads and state government for structural fortification. Further, monitoring of the Panchayat Extension to the Scheduled Areas (PESA) and Forest Rights Act (FRA) by TAC could improve implementation.

Within the limit of the numbers prescribed in the Schedule, TACs will be enriched if some well-meaning empathisers, activists and proponents of the tribal cause, whether STs or non-STs, are accommodated as members. Both the governor and chief minister should be brought on board in TAC, the former as chairperson and the latter as vice-chairperson. The chief secretary should be a member, and the secretary to the governor a member-secretary.

In its present form, the Fifth Schedule may be a lumbering feudal piece, but on reform it will epitomise a deliberate responsibility of the Indian democracy to push STs up the ladder from a very low base. Some changes in the Schedule suggested here are likely to induce accelerated tribal advancement as well as assuage tribal anger and resentment, particularly in the violence-ridden tribal areas, contributing to inclusive national progress.

The author is a former adviser to Planning Commission and Special Commissioner for Scheduled Tribes, Government of India

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