A provision in need of serious review

The Fifth Schedule has remained mired in confusion and politicking

By B K Manish
Published: Friday 05 September 2014


It took 40 years before a tribal representative could be inducted in Indian Cabinet. Land and resources of the tribal people were looted not just by the non-tribal settlers, the common refrain has been that though tribal welfare has consistently been a thrust area for New Delhi since Independence, the implementation of various schemes and legislation were tardy.

Plight of tribals has been taken rather seriously in last 10 years by most proponents of democratic polity.  

Piling empirical evidence that the brunt of development juggernaut has been borne by tribals more than any other segment, or that common measures of positive discrimination have not helped STs, as in case of SCs, led to the slow realization that it is not just the implementation but the potency of the schemes or even the orientation of policy itself that is at fault.  

The Fifth Schedule is a case in point. It was inserted in the Constitution to assuage the very apprehensions that currents of national mainstream, including its complex law and administration may mince the tribals. Centrality of Fifth Schedule in tribal rights discourse was noticed in the buoyant times of tribal welfare in the early 1970s and witnessed an attention curve of swift ascent and slow descent on the way to onset of tribal rights era; finally getting the fillip to reach centre-stage in the mid 1990s.  

Lack of clarity
Unfortunately, divergence of strong views over interpretation of the Fifth Schedule have preempted all attempts at making amends. Then again, while rhetorical interpretations receive all attention, official-dominant interpretation is silent and rational ones are subdued. The Dhebar Commission rued the fact that requisite clarity to make the Fifth Schedule functional had not arrived from Union of India; though it virtually endorsed the prevalent practice of shortcut-legislation by provincial governments under para five in the name of Governor.  

Unfortunately, what followed thereafter were potent efforts at developing an even more irrational though highly convincing version, of Governor’s discretionary power under Fifth Schedule. There's clear documentary evidence to show that this legal fiction was improvised out of the frustration of certain benevolent jurists and bureaucrats, disregarding the fact that Governors hardly have any democratic basis left to exercise the almost extra constitutional functions mentioned in para five after the end of provincial dyarchy. Instead of deconstructing the official version in guiding light of political justice and legal rationale, collective energies were devoted to develop a counter-version in the face of consistent opinion of Attorneys General till 2010, and of a string of Supreme Court Constitution Bench rulings. In due course this counter-version gathered momentum and achieved judicial backing from Supreme Court in 1997 (Samata judgement). It also inspired two potent spin-offs from Sixth Schedule in Scheduled Areas of south-central India. Emotional construct of this movement and expediency ensured that no attempts were made to trace the history of Fifth Schedule utilisation or its interpretation in various High Courts in early decades of Independence. 

There has not been any authoritative ruling from a Constitution Bench on the legal theme of Fifth Schedule as is clear from the Balco Union (2002 2SCC 333) ruling. Even Union of India vs. Rakesh Kumar is largely on the Fifth Schedule versus Fundamental Rights dilemma of Supreme Court; Mansingh Suratsingh Padvi shows how this myopia has cause immeasurable misery to tribals despite seemingly rational judgments coming from known liberal judges.  

As for the mechanism for utilization of Fifth Schedule, first there has to be clarity on the discretionary powers of Governor, in general. So far, Hon'ble Supreme Court has dealt with this in most dogmatic and ad-hoc manner. If Indian Parliament is not at-par with British Parliament, lack of judicial function and several other factors, stating that governance model of India is similar to British Westminster Model of Cabinet in Ramjawaya Kapoor, Sanjeewi Naidu, R C Cooper, U N R Rao and Samsher Singh was entirely uncalled for; and the incremental corrections in State of Rajasthan, State of Karnataka, Hargovind Pant, S R Bommai, M P Special Police Establishment and B P Singhal still don't provide adequate clarity until the earlier set of rulings are expressly overruled, in view of New Separation of Power doctrine of Bruce Ackerman, read with checks and balance needs. This is wiser way of moving forward on Governor's discretionary powers, instead of adding to discretionary functions on contingency basis, as the Supreme Court has done since 1974.  

Once the general issue of Governor's discretionary power is resolved, Parliament may consider amending the Fifth Schedule to mandate the Governor to work in harmony with a TAC that is free from any influence or participation of council of ministers. This way democratic ideals and tribal rights can be harmonised. 

Even as tribal scenario goes from being alarming to catastrophic, prevailing confusion in Fifth Schedule discourse continues to flummox all efforts at structural amends. This habit of denial is essentially built on the conscious choice of avoiding unpleasant eventuality of correcting anti-tribal stances taken by legendary forefathers in the Constituent Assembly. For instance, letters written to Governors by the former Union minister for tribal affairs, V Kishore Chandra Deo, while exercising the power of issuing directions to the state under para 3, find coverage in pro-liberal media but not his healthy self-doubt about the very intent behind Fifth Schedule.  

Thankfully, the research and dialogue on the sidelines of controversial PIL challenging constitutional validity of Chhattisgarh Tribes Advisory Council Rules is cracking open the whole riddle of Fifth Schedule, for a truly informed debate. After forcing the ministry of law and justice to issue a formal clarification, it is generating a discussion in leading law schools and tribal rights activists’ congregations on the urgent need of absolute clarity and unison on the interpretation of Fifth Schedule. Having quantified the ‘historical injustice to tribals’, the momentum has clearly prepared the grounds to make amends accordingly. In light of collated, irrefutable, documentary evidence that Fifth & Sixth Schedule were ill-guised attempts at denying tribal autonomy, a concerted campaign is called for to improvise fresher and functional models of tribal autonomy. Both the Tribal Question and Ecological Debate can be largely ridden of the rhetoric by such a radical review of Fifth Schedule. Due to its complexities, academic thrust and judicial intervention are both prerequisites for the mass movements and advocacy efforts to precipitate legislative action. 

Expediency, egos and nepotism must be overcome by all concerned if any significant outcome is desired.

B K Manish is a tribal rights activist. The article above is an extract from his book, Fifth Schedule and Beyond: Aspects of Tribal Question


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