Autonomy for tribal communities in central India #indigenousrights


The Hindu : June 18, 2013

Right place, wrong arrangement

Sonum Gayatri Malhotra, 

Moving governance of tribal areas in central India from the Fifth to the Sixth Schedule will help address the demand for autonomy

(Sonum Gayatri Malhotra is with the Centre for Policy Research, New Delhi.)

The targeted attack by Maoists in Chhattisgarh against the State Congress leadership in which V.C. Shukla, Mahendra Karma and the party’s other top leaders were killed has rekindled a familiar debate on the military aspects of counterinsurgency. However, the continuing cycle of violence in the State underscores the need for a closer examination of the social and political impact of the Fifth Schedule of the Constitution through which the tribal areas of peninsular India are governed.

India’s population consists of 100 million tribal people who have constitutionally been addressed via two distinct avenues. The Fifth Schedule applies to an overwhelming majority of India’s tribes in nine States, while the Sixth Schedule covers areas that are settled in the northeastern States bordering China and Myanmar. Bastar district in Chhattisgarh is governed by the Fifth Schedule, but it wants to move into the Sixth Schedule.

The Sixth Schedule gives tribal communities considerable autonomy; The States of Assam, Tripura, Meghalaya, and Mizoram are autonomous regions under the Sixth Schedule. The role of the Governor and the State are subject to significant limitations, with greater powers devolved locally. The District Council and the Regional Council under the Sixth Schedule have real power to make laws, possibility on the various legislative subjects, receiving grants-in-aids from the Consolidated Fund of India to meet the costs of schemes for development, health care, education, roads and regulatory powers to state control. The mandate towards Devolution, deconcentration and divestment determines the protection of their customs, better economic development and most importantly ethnic security.

The Fifth Schedule on the other hand fails because it has never been applied. Recent parliamentary moves to provide greater autonomy within the Fifth Schedule have not had the desired results. The 1996 PESA or Panchayats (Extension to the Scheduled Areas) Act should have been a landmark for the tribal communities. It mandates the state to devolve certain political, administrative and fiscal powers to local governments elected by the communities. This became exclusive to the Fifth Schedule areas, to promote tribal self-government. PESA was meant to benefit not only the majority of tribals but also extended to cover minority non-tribal communities. It guarantees tribes half of the seats in the elected local governments and the seat of the chairperson at all hierarchical levels of the Panchayat system.

Samatha judgment

PESA was considered the most logical step in the Fifth Schedule areas to ensure tribal welfare and accountability. But, alas, it has not been properly implemented. Tribal communities have progressively been denied self-government and rights to their communities’ natural resources that should have been provided under the legislation. In its 1997 Samatha decision, the Supreme Court ruled that the Fifth Schedule enjoined Governors to bar purchase of tribal land for mining activity by any entity that was not state-owned. This judgment however, led to an opposite reaction from the Ministry of Mines, and subsequent appeals from the Andhra Pradesh government claiming that Samatha would have an adverse effect not only on the mining sector but also on non-agricultural activities especially industrial activity and hence would impact the economic development throughout the country. In response, the Governors were then given unfettered authority in the transfer of Scheduled Tribe land to the government and allotment to non-tribals, altering the balance of power and undermining the stated goal of tribal autonomy.

Other examples abound, including the Scheduled Tribes and Other Traditional Forest Rights Act of December 2006, which ostensibly recognises the right of communities to protect and manage their forests (as does PESA), but only if the state decides whether a certain region is denoted as Village Forest or Reserved Forest. In this process, many communities are evicted without a proper channel of rehabilitation.

For these reasons, it is evident that PESA and the Fifth Schedule have been counterproductive, inconsistent in addressing issues regarding tribal rights and the propensity of failure justifies serious debates on the existing endeavours.

Many tribal voices are therefore demanding introduction of the Sixth Schedule in Chhattisgarh’s Bastar district, which would give them a special status to participate directly in governance as in the North East States currently under the Sixth Schedule.

Furthermore, the Sixth Schedule has certain features that can be implanted in any governance model for tribal areas, particularly concepts of constitutional and legislative subjects that are exclusive to local governments. An autonomous district council will give greater role in directing administrative requirements without depending on the Central State structure.

However, the working of a system is always different from the Idea of it. The Sixth Schedule that embodies autonomy has its own shortcomings; breakdown of laws, elections not being contested, rather than empowerment there is exclusion that fails to provide much-needed protection to tribes in the absence of political will, and, live by the mercy of government funds.

But in spite of the negatives underlying the Sixth Schedule, Bastar district envisages a true form of local bodies like the District Council and Regional Council that have provided a fair degree of autonomy.

(Sonum Gayatri Malhotra is with the Centre for Policy Research, New Delhi.)

#Chhattisgarh- Centre reverses stand on governor’s powers under Fifth Schedule


Author(s): Jitendra, downtoearth

Assistant solicitor general’s affidavit says the constitutional head of state has no discretionary powers over functioning of Tribes Advisory Council, headed by chief minister

The Centre seems to have reversed its stand on the powers of a governor over administering tribal areas in a state. Earlier, the attorney general of India had given an opinion to the home ministry, in response to a reference, that governors do have discretionary powers, but an assistant solicitor general has said exactly the opposite. Fauzia Mirza has said that the governor has no discretionary powers under the Fifth Schedule of the Constitution of India in a submission filed in the Chhattisgarh High Court on behalf of the Centre. The Fifth Schedule is rooted in Article 244 (1) and deals with administration and control of Scheduled Areas and Scheduled Tribes.

Mirza filed the submission in February end in connection with an ongoing case that has virtually challenged the Fifth Schedule and validity of the Tribes Advisory Council (TAC).  “The governor has granted powers to the chairpersons as per the rules of TAC,” the assistant solicitor general stated. “It cannot be said that these rules have been formulated to exercise the governor’s discretionary powers. While framing these rules, the power of governor has been exercised as the Constitutional head of the state acting with the aid and advice of the council of ministers and not in his discretion,” the document says.

The statement contradicts the opinion expressed by attorney general G E Vahanvati on April 21, 2010. Vahanvati, in his opinion on the nature of powers of the governor under the Fifth Schedule, had stated that the governor does have discretionary powers and had based his opinion on nine judgements of the Supreme Court and other references.

The division bench of Chief Justice Yatindra Singh and Justice Pritinkar Diwakar granted two weeks to the advocate general to file a reply. The next hearing is on March 12.

Fifth Schedule and its implementation in practice

The public interest petition filed last year in the Chhattisgarh High Court virtually questions the Fifth Schedule. The petition says it was impractical to implement the Fifth Schedule in its present form because of its flawed nature. While it was the root cause of the tribals’ plight, the functioning of TAC is also questionable, it said. According to the petitioner, if governors exercise their near extra-constitutional powers, they would be in direct confrontation with state executive heads.

According to the petition, paragraph 4(2) of the Fifth Schedule stipulates that TAC should hold deliberations in such a manner that the governor refers to them. “In reality, the chief minister, who is also the chairperson of TAC, decides the agenda and seizes sole control over functioning of the body without taking any reference from the governor,” the petition states.

“Governors never exercise their power entrusted in the Fifth Schedule,” says B K Manish, the petitioner who is a tribal rights activist. He cited two recent incidents—Nagari movement of Jharkhand and illegal detention of thousands of tribals in the name of Maoist movement in Chhattisgarh. In Nagari, adivasis approached the governor to annul a project to establish a centre of the Indian Institute of Management by forcible acquisition of fertile land. The governor ignored their demand. In Chhattisgarh, the governor turned a deaf ear to tribals’ appeals to annul the draconian Chhattisgarh Special Public Security Act.

 

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