Few know why the tribals have been callously robbed of their rights in violation of the express provisions of the Constitution.
In an extraordinary and most damning indictment of the Central and state governments, the Supreme Court recently complained that “nobody looks at Schedules V and VI of the Constitution and the result is Naxalism.” This was the result of what it termed oversight of constitutional provisions relating to the administration of scheduled areas and tribes of the country. A Bench led by Justice A K Patnaik observed that “urbanites are ruling the nation. Even several Union of India counsel are oblivious of these provisions”.
Why and how does this rape of the Constitution happen? How has every single authority responsible for honouring and executing the Fifth Schedule - successive prime ministers, chief ministers, tribal affairs’ ministers, law ministers, and others – with some marginal exceptions, so singularly and consistently failed to abide by their oaths of office and perform their constitutional duty by the vast majority of Tribal India? Some justice has been done to Sixth Schedule areas in the Northeast, but not to the far larger number of tribals living in Fifth Schedule Areas, in nine other states of the Union. Who cares?
Very few know or ask why the tribals have been so cruelly and callously robbed of their rights in gross violation of the social contract the founding fathers solemnly made with them. Much of the punditry piously aired officially and otherwise about stemming the rise and spread of Naxalism in tribal India is sheer, self-serving piffle. But now, the Supreme Court, has in remarkably mild terms, proclaimed the unspeakable.
As a journalist of 60 years standing I do not recall any prime minister, chief minister, governor, MP or MLA or any other concerned official or authority having ever raised his or her voice against the total disregard of this protective shield. The only exceptions have been some commissioners for SC/STs, like the indefatigable B D Sharma, and a few social activists and administrators like B N Yugandhar and S B Munegaker of the Planning Commission whose reports categorically indicted the government for failing to observe constitutional proprieties vis-a-vis Tribal India. Their findings were smartly pigeon-holed.
What is one to make of this flagrant ‘constitutional oversight?’ If governments studiously violate the constitution, how can they tell the Naxals not to do so? What if such oversight of fundamental rights, presidential powers, federal principles, the judicial and electoral process and other key components of the Constitution were also to be consistently and deliberately subject to ‘constitutional oversight? The result would be anarchy. But if tribal India is crushed by constitutional deceit, then does society just shrug its shoulders and say so be it.
Key element
Since the Fifth Schedule seems not have been read by most functionaries, one needs to explain its contents. The key element is the nomination of the governor as the executive agent of the President, overriding the jurisdiction of state administrations, for the peace, tranquillity, development and good governance of 5th Schedule areas – which exist in nine states, and curiously exclude Kerala, Karnataka and West Bengal, all of which have significant tribal populations.
Section 3 of the 5th Schedule requires the governor to make an annual report to the President regarding the administration of these areas “and the executive power of the Union shall extend to the giving of directions to the state” in this regard. In view of the guarantee of tribal rights and customary law, Section 5 provides that “the governor may by public notification direct that any particular Act of Parliament or the Legislature...shall apply to a Scheduled Area” either wholly or in part “subject to such exceptions and modifications as he may specify…”, even with retrospective effect. Thus laws, rules and regulations considered good for Delhi or Raipur, are not necessarily assumed to be good for Dantewada.
All such directions and regulations by the governor shall issue after consultation with the tribal advisory council and shall require presidential approval. By a change of rules decades back, the chief minister started chairing the TAC, thus reducing the governor to a rubber stamp. How this was done and its constitutionality is questionable. This deliberate emasculation of the Fifth Schedule was finally raised in the President’s annual conference with governors some years ago, but no follow up action was taken.
A powerful law, the Panchayat Extension to Scheduled Areas Act (PESA) was enacted in 1996 to empower gram sabhas. These have by and large been by-passed. Fifth Schedule districts are understaffed . Many officials do not know the tribal language. The administration is district headquarters-oriented and multiple departmental clearances are required under Section 52 (b) sub section 2 (a) as amended in 1996 and again in 2003. A poor illiterate tribal given to an oral tradition is expected to understand the gobbledegook that an urbane PhD would have difficulty in comprehending. No wonder that petty rent-seeking forest officials, liquor and minor forest produce contractors, and police, where they exist, rule the roost.
We are told that Naxalism is the greatest internal security threat faced by India – and we are determined to solve it with more law enforcers, selective budgetary allocations and recruitment of bright young administrators but without restoration of the constitutional, legal, administrative and moral framework whose deliberate abrogation caused the problem to arise in the first place. Policy making and political declarations have reached a level of monumental non-understanding and humbug at the highest levels, across parties.