Fifth Schedule: a critique

The year 2017 celebrated a decade of the UN Declaration on the Rights of Indigenous Peoples, popularly known as UNDRIP. The declaration is the only such drafted by the indigenous peoples of the world themselves for the first time in the history of the UN. The Assembly adopted the declaration in 2007 with 144 votes for, four against and 11 countries abstaining.

The main themes of the UN Declaration are the right to self-determination; to be recognised as distinct peoples; to free, prior and informed consent; and to be free of discrimination. Decades before this, the Constitution of India promulgated alternative governance mechanisms for adivasis in the form of the Fifth and Sixth Schedule.

India is one of the countries which voted in favour of the UN declaration. Indigenous people constitute 5% of the total global population, whereas, in India, adivasis constitute 8.6% of the population as per Census 2011.

Adivasis are the focus of the Fifth and Sixth Schedules. The Fifth Schedule consists of 10 states in central and eastern India, whereas the Sixth Schedule covers the adivasis of the north-eastern region. Articles 244(1) and 244(2) provide special administrative provisions for the governance of adivasi areas.

Tribes Advisory Councils (TACs) are the governing structures of adivasis in Fifth Schedule and the Autonomous District Council and Regional Councils are the administrative arrangements for the Sixth Schedule. Former Chief Justice of India, the late Mohammad Hidayatullah, significantly called the Fifth and Sixth Schedules as a "Constitution within the Constitution, or miniature Constitutions, for certain scheduled areas of India".

In the context of cultural, ethnic and socio-political conflicts in the areas of the Fifth and Sixth Schedules, it is pertinent to revisit these schedules from a critical perspective. Comparatively, the Sixth Schedule has succeeded in providing the autonomy of self-government to the adivasis. However, the same is not seen in the areas governed by the Fifth Schedule.

Most of the areas governed under the Fifth Schedule are caught between the parliamentary versus revolutionary politics of the Indian State and the Communist Party of India (Maoist). Hence, an effort has been made to understand the Fifth Schedule from a democratic governance point of view, as to how it has evolved, and has been formed and transformed by the Constitution-makers.

The Fifth Schedule, as it reads now, relates to the "Provisions as to the Administration and Control of Scheduled Areas and Scheduled Tribes". This schedule, by and large, is a replica of colonial legislations, The Government of India Act, 1919 and The Government of India Act, 1935. However, a point to be noted here is that there was no word of 'control' in these colonial acts that formed the basis for the present Fifth Schedule.

In terms of administering the scheduled areas, the word control can be understood as 'power to influence or regulate'. This single word control has reduced the prospects of the Fifth Schedule into a mere paper tiger, without any powers of self-governance.

It gives the impression that the Constitution-makers showed a tendency to centralise the authority and power to govern the scheduled areas in Central India. This may have been acceptable, given the circumstances prevailing at that time, such as the risk of balkanisation of the country.

Structural barriers

Seen in today's context, this is a contentious issue, as it opens the doors for the Union government to control the scheduled areas of this region in the name of welfare and administration through respective state governments, more specifically through the Governor's office. This is a serious deficit in the context of democratic ethos and governance.

Apart from this, there are other structural barriers in the Fifth Schedule. They are: (1) Creation of TACs without any powers, unlike the Autonomous District Councils (ADCs), which have legislative and financial powers to some extent; (2) No clarity on the composition of TAC, especially the remaining one-fourth of the membership; (3) Reduction of the Office of Governor to a mere annual report-writing institution to the President on the affairs of scheduled areas, rather than utilising it as the guardian of constitutional governance; (4) Ambiguity of the discretionary role of Governor.

Addressing these institutional deficits is important to understand the issues of constitutional governance. This will help to elucidate the Fifth Schedule and its implications on the political autonomy of adivasis. The question is, will the Indian Union and state governments show the necessary political will to amend the colonial framework of governance as laid down in the form of the Fifth Schedule?

The functioning of the Indian State since it became a Republic indicates that it is going to be a tough task until the Union and state governments change their attitude and perception towards the welfare of the adivasis through the prism of an effective and ethical state.

If the Indian State does not undertake such empowering steps to uplift adivasis, it may end up with the tag of a country that has endangered the original inhabitants of the land.

(The writer is Doctoral Fellow, Centre for Political Institutions, Governance and Development, Institute for Social and Economic Change, Bengaluru)