Chapter 2

The Constitutional Framework and its Dilution

The constituents of the Constitutional framework for protection of tribals in India are:

1.         The Fifth Schedule 

2.         Presidential Orders

3.         The role of the Governor

        4.         Tribal Advisory Council (TAC)

5.         The Judiciary

THE FIFTH SCHEDULE

Sections 92 of Government of India Act, 1935 specifically states

".......no Act , of the Federal Legislature, or the Provincial Legislature shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so declares...."

Whereas, the Fifth Schedule, in Article 244(1), Part B 5(1) states

"Notwithstanding anything contained in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area........."

The Fifth Schedule transposed the 1935 condition, and placed a lot of conviction on the Governor and his functions.

Presidential Orders and The Governor

The Fifth Schedule empowers the Governor to modify Acts proposed/passed by Legislature to conform to the needs, character and composition of Scheduled Areas[24]. However, in practice, Governors have never exercised  these prerogatives in the interest of the tribal. There have been several instances when the Governor could have performed a positive role (as expected of him in the Constitution), but failed to do so.  The Governor presently enjoys immunity from litigation against him. Nevertheless, litigations under Article 356 of the Constitution in the Supreme Court have amply illustrated that the Governor is accountable for his actions, or for that matter, inaction. Similar remedies need to be explored to ensure justice to the tribal.

Legislative Constituencies: Necessity for Reorganization

Over 20 villages[25] in the agency areas of West Godavari District, with non-tribal predomination were deleted from the Scheduled Areas list in 1949. The absence of a popular Government then led to the expunging of these villages. However, these villages were not expunged from the Polavaram Legislative Constituency[26], reserved for Scheduled Tribe Candidates. The Election Commission, if not the Governor could have perceived the discrepancy and resituated the Constituency.  Complex circumstances have resulted.  A Scheduled Tribe candidate has to rely upon non-tribal buttress, and consequently risks being a stooge.  Non-tribals, in turn, are unsettled in regard to electing a Scheduled Tribe member.

The Bhadrachalam and Parvatipuram parliamentary Constituencies are reserved for Scheduled Tribes. Of the 7 legislative segments in the Bhadrachalam Constituency, only one, Gopalapuram (West Godavari), is non-tribal(Scheduled Caste). Sringavarapukota, in Vizianagaram District, neighboring Bhadrachalam Constituency is a legislative segment reserved for Scheduled Tribes. The Constituency should have been rearranged into a distinctive contiguous tribal tract by the exclusion of Gopalapuram and inclusion of Sringavarapukota. Similar examples exist in Parvatipuram Constituency too. Likewise the agency areas of Adilabad District are divided into Peddapalli and Karimnagar Parliament Constituencies. The apportionment has reduced tribals to a minority in both Constituencies[27]. Integration of two into a single Constituency should have been sought by the Election Commission.

With the exception of Andhra Pradesh and West Bengal, all States have implemented the Parliament resolution to introduce all areas with high tribal population into the Scheduled Area list.  The process was initiated in 1976.  The Fifth Schedule was extended to the States of Madhya Pradesh, Bihar, Orissa, Rajasthan, Gujarat, Maharashtra and Himachal Pradesh to cover entire sub-plan areas as identified in the first phase. In Andhra Pradesh, the process began late 1978, and was abandoned midway for unknown reasons. The States of West Bengal, Kartnataka, Kerala, and Tamil Nadu have not yet begun the process. While money flow into Scheduled areas increased in volume, no parallel mechanisms were devised to counter adverse forces that were unleashed as a result.  Thus, tribal began facing the increasingly severe backlash of 'development'.

The Andhra Pradesh Co-operative Societies Act, 1963 reserves a single post of Director for Scheduled Tribes in Primary Agriculture Co-operative Societies, of a total of eleven such posts.  Intrinsically, in Scheduled Areas, the number of reserved posts of Directors do not reflect the tribal predominance. The majority of members of such Cooperatives are tribals.  Nevertheless, the Directors' posts Director are monopolised and the Societies dictated by non-tribals. Tribals have thus been unable to effectuate the benefits of such Societies[28]. The 1963 Act needs to be amended by the Governor to augmenting reservation of Directors' posts.  Interestingly, this lacuna in the Act has never been raised in the TAC meetings (see section on the Tribes Advisory Council in this (Chapter).  The Karshaka Parishad Ordinance was promulgated in 1988 without providing any reservation for Scheduled Tribes and Scheduled Castes.  The Governor could have modified the Ordinance to provide for such reservations.  The Ordinance was subsequently discontinued by the succeeding Government[29]. 

Panchayat Raj Institutions and Reservations

The Andhra Pradesh Mandal Praja Parishad Act, 1987, was ratified without mature contemplation to the contiguity of tribal areas. Many contiguous tribal villages were fragmented by inclusion in Mandals with  predominantly non-tribal populations. Tribals were reduced to  minorities in these Mandals and marginalized.  Tribal Welfare agencies and authorities administering protective legislation for tribals are severely impeded by such fragmentation. For example, Makkua is the only Scheduled village in Makkua Mandal in Vizianagaram District. All Mandal Praja Parishads reserved for Scheduled Tribes in Vishakapatnam, East Godavari, West Godavari, Adilabad and Khammam Districts are wholly situated in Scheduled areas[30]. The Governor failed to modify the Act and ensured the contiguity and homogeneity of these tribal areas under the new dispensation.  The Agent's endorsement, way back in the 1930s, to transfer Matham, Bhimavaram and other villages of Vishakapatnam District to East Godavari, due to their inaccessibility from Vishakapatnam has yet to be dealt with.  Intrinsically, the Agents suggestions are still legitimate, and need implementation[31].  The Governor can still ensure amalgamation of tribal areas in such fragmented Mandals.  He can solicit advice from the TAC in such undertakings, prior to giving his assent for Bills passed by Legislature[32].   While tribal areas were brought under the Sub-Plan[33] for development purposes[34], Revenue Divisions/ Mandals overlap non-tribal areas resulting in inadequate attention.  The formation of Mandals by the Mandals by the Andhra Pradesh Government has fragmented contiguous Scheduled villages and abutting villages (to be Scheduled) with tribal majorities.  Similar fragmentation has occurred in as 136 Mandals.  Reorganization of existing administrative units is essential to retain tribal areas as cohesive social, geographical and more importantly, administrative entities[35].

Reservation for Panchayat Raj institutions in agency areas commenced only after 1963.  Following the 73^rd and 74^th Amendments to the Panchayat Raj Act in 1995, the State Government rearranged agency areas into Zilla Praja Parishad Territorial Constituencies (ZPTC) and Mandal Praja Parishad Territorial Constituencies (MPTC). This reorganization, in certain cases, has brought tribal majority Constituencies into a category open to other backward classes (OBCs) and Scheduled Castes. This was challenged in the High Court. Meanwhile, the Government's repartee was a notification, in the name of the Governor (under the Fifth Schedule), reconfirming this reorganization.  The High Court responded sharply to this maneuver, nullifying the notification as will as the elections[36].  The government subsequently moved the Supreme Court, where the matter is still pending.  The situation was strikingly similar to one that arose in the sixties, when the Governors' modification of Subsection (1) of Section 7 of the Panchayat Samithis and Zilla Parishads Act was contested in the High Court.   In this instance too, the Government had issued a Notification validating the modifications.  This was brought to the notice of the High Court, which quashed the operationalization of the Notification of modification as well the confirmatory Notification[37].   As to how the government carves out constituencies for the forthcoming Panchayat elections as per the Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 in the interests of tribals remains to be carefully observed.

Governors Reports to the President of India

Various committees have been constituted from time to time to report on the situation in agency areas.  Such reports have undergone a continuous dilution of content and have become mere impersonal statistics, and do not epitomize genuine anxiety for ground relities.  The early reports of H.E.Sullivan subsequent to the Rampa rebellion comprise a series of painstakingly compiled individual depositions from aggrieved tribals and are comprehensive in their documentary effort.  Sullivan went to the extent of searching for and obtaining the services of an  official who enjoyed the tribals' confidence, to coax them to come forward with their depositions.  Sullivan also suggested corrective measures and these were heard; an incident relating to the imposition of axe tax documented by him, for example, found mention in reports of the then Acting Chief Secretary to the Government.  Such comprehensive early reports had effects across all tiers of the government hierarchy.  Later reports, such as the Report on the socio-economic Conditions of the Aboriginal Tribes of the Province of Madras (by A. Ayyapan, Government of Madras) of 1948, the Cabinet Sub-Committee Report on left Wing Extremism of 1990[38] and the Administrative Staff College of India Report - Left Wing Extremism in Andhra Pradesh: Policy Issues and Directions - of 1995 (by Dr.G.R.S.Ro and Dr.R.L.Karumanchi, Centre for Public & Systems, ASCI, Hyderabad) showed progressive degeneration in content and depth.  The Governor's annual reports on agency areas to the President of India, mandatory under the Fifth Schedule[39] have only followed this pattern of degeneration.  Neither fluid social realities, nor sensitivity to tribal people and their indigence have featured in these reports.  While statistical data is accommodated, and progress under various development schemes highlighted, the reports do not delve into the human aspects of the facts and figures.  Historically, social relations in tribal societies have not induced strained situations and violent outbursts or driven individuals to drastic acts such as murders and suicides.  Haimendorf, who documented the lifestyles of the tribals of Godavari, especially mentions the absence of murders and suicides among tribals[40]. Unfortunately, recent times have witnessed a upsurge in crime and suicides among tribals.  Thus while crimes are committed and the convictions obtained are recorded in the Governors reports, these contain no attempts to analyze the dynamics of this "social chaos"[41].  The reports previously contained a column recording charges against the Police, the action taken against errant officers and the convictions pronounced[42]. This column is now generally missed. The growing impact of mainstream society on the perspective and values of tribals, shifts in thier beliefs and aspirations, and their frustration do not feature in the reports.  The range of issues at hand are diverse:  cases filed against tribals under forest, wildlife, excise, arms and ammunition laws the pendency of cases in various courts, compensations payable to  tribals against damage caused by wild animals[43], accidents and consequent claims of insurance, atrocities such as rapes, murders and discrimination committed on Scheduled Tribes, land acquisition and displacement of tribals, rehabilitation measures, implementation of minimum wages, increasing epidemics, persons missing due to police action and encounter deaths, either with naxalites or the police and non-payment of ex-gratia, allegations of human sacrifice,[44] sorcery, witchcraft; cases filed and their status[45]-- the list goes on. The Agency Areas have been aflame for the last three decades. Neither the Governor's reports nor any government document critically reflect these issues.  The President too, as empowered by the Constitution, has not called for such reports, Prior to 1947, the Chief Secretary of the Madras Presidency convened frequent meetings of the Agency Board (comprising of Agents and Assistant Agents).[46]  Following independence, no such meeting has been convened.  (Despite requests by an NGO to the Governor to throw light on his role vis a vis the Cabinet, he did not respond.[47])

The requirement of tribals of seats in educational institutions (especially in degree colleges) in tribal areas is substantially higher than the 7% provided for them.[48]  This demand is being met on an ad hoc basis through the intervention ITDA, Project Officer. Formal arrangements to serve the increasing educational aspirations of tribal students are virtually nonexistent, leading to heightening strain between tribal groups during admissions to educational institutions each year. As many as half of the 7% of reserved seats for higher education in metropolitan cities such as Hyderabad are appropriated by socio-economically advanced tribal groups such as Lambadas and Yerukulas[49].  The remaining 31 tribes are having to be reconciled  with barely half  the number of reserved seats, to be shared amongst them.  Government Orders (G.Os) reserving posts for tribals in the Tribal Welfare Department (100%), and in the Forest and Excise Departments (50%) were issued in 1987.  This reservation process is underway.  Such reservations too, are cornered by the 'superior' tribes.  Primitive tribal groups (PTGs) such as Konda Reddis and Chenchus are given special assistance by the Centre.  State Governments, in addition to this special assistance, have to allocate an average percentage share of their annual budgets in addition to this Central assistance.  The State, however, is utilizing only the Central aid and not the average budget share.  Each state department has to allocate a certain percentage of funds towards tribal welfare through Tribal Welfare Department.  This is largely not being done.  Where allocations are being made, the Departments utilize these funds themselves, without careful consideration for their appropriate use.  Such insights do not feature in the Governor's or Agent's reports.

The Tribes Advisory Council (TAC)

The Fifth Schedule requires the government to lay Bills affecting agency areas before the TAC, a Constitutional body comprising Legislative Members Scheduled Areas, prior to introduction in the Legislature for ratification. As far back as the 1960s, the Commission for Scheduled Castes and Scheduled Tribes[50], Government of India, had indicted the Andhra Pradesh State Government for not consulting the TAC[51] before general legislation affecting land, land tenure, allotment and distribution of land, debt redemption, and control of money-lending was undertaken. While the TAC's resolutions are not binding on the Cabinet in all cases, it maintains a veto authority over any proposed action pertaining to existing regulations by Government in tribal areas.   When authorities enforcing the APLTR of 1959 (as amended in 1970) issued orders interpreting the Regulation as having retrospective effect from 1959, the High Court struck down such Orders[52].  While the State Government appealed to the Supreme Court,  the TAC resolved to accord retrospective effect to the Regulation by making suitable amendments[53].  However, the Cabinet failed to approve and forward this resolution to the Governor for issuing a Notification. The Supreme Court has since upheld the High Court judgment[54]. (The State Government can now forward the Resolution to the Governor, and therefrom to the President.) The TAC yielded  to massive coercion from the Government and passed a Resolution repealing the Amendment 1 of 1970 to the APLTR 1959, which prohibits transfer of land between non-tribals. Although the Cabinet approved the Resolution, it presumably was not forwarded to the Governor, due to widespread protests.  It cannot be presumed, that there will be no further development in future until and unless both the Cabinet and the TAC withdraw the resolution, Such as the attempt in 1976, to delete 123 villages from the Scheduled Areas list[55].

The TAC twice rejected proposals (in 1995 and 1996 respectively) from the Department of Industries to relax the land laws of agency areas to allow leasing of land for industrial purposes. When the TAC and the Cabinet were prepared to issue orders under the 5^th schedule settling Dalli[56] lands in Maharashtra in favour of the tribals, the Centre coerced the State Government into not going ahead. The then Prime Minister Rajiv Gandhi pacified the enraged tribals by convening a committee[57] to look into the issue.  Subsequently, the Ministry of Environment and Forests issued detailed guidelines to be strictly followed by all States[58]. The Andhra Pradesh Government, by then had already determined[59] not to disturb the encroachments made prior to entry into force of the Forest Conservation Act, 1980 (the State realized the gravity of this decision only seven years after the Act came into force - these were the years the naxalite movement was at its zenith).  However, other States have yet to take up follow up action as per these guidelines.

The TAC's role is consultative in nature.  Being a body formed under the Constitution, its queries should command the attention of all government institutions.  Nevertheless, being presided over by only a Minister of State and not even the Cabinet, its efficacy does not extend beyond the Tribal Welfare Department.

The judiciary

The Judiciary also performed a role in the boiling cauldron of ever-shrinking Scheduled Areas by abetting the further deletion of 23 villages in the Mulugu Circle from the Scheduled Areas of Warangal District[60]. The petitioners (seeking such deletion) in this case prevailed by naming got the Special Deputy Collector (SDC), Tribal Welfare,  as the respondent, rather than the Union of India (the case involved a Presidential Order). The High Court has erred in law, not disputing this grave lapse. Ironically, these same villages are dealt with as agency areas for payment of special allowance to Government employees[61]. The State Government too did not prefer an appeal to the Supreme Court. The High Court also admitted a batch of petitions[62] relating to the applicability of the Presidential Order of Scheduled Area Notification and of the LTR to villages in Agency Areas of West Godavari, Khammam and Warangal Districts and has restrained the authorities from passing or executing such orders. The High Court has perpetrated serious indiscretion in admitting these petitions, which are not maintainable in a Court of law.  The Government too, in failing to file a counter affidavit for six years[63] has favored the non-tribal petitioners.  The matter has been sub judice for the last nine years; thousands of acres of land remain ' locked' under litigation[64].  Often, litigation involving tribal certificates is prolonged until after the petitioner retires.  The Courts position on the (need for) expeditious resolution of such matters has been inconsistent.[65] The Supreme Court taking a strong view against the Andhra Pradesh High Court, has indicated it for nipping the process in the bud,[66] in a matter relating to a Director General of Police.[67] Conflicting judgements seem to be the High Courts forte.[68] While a Division Bench quashed leases to non-tribals in government lands as they are violative of the LTR,[69] another Division Bench of the Court endorsed similar leases.[70]  The notification issued under the Fifth Schedule, inserted in G.O.Ms.No.264 Industries and Commerce dated 7.8.1991 sated.

"notwithstanding anything contained in this Act no prospecting licence or mining lease shall be granted in the Scheduled Areas to any person who is not a member of the Scheduled Tribes"

This notification is superfluous, and has engendered the erroneous inference that licences or mining leases issued prior to the notification date of 7.8.1991, are legally valid. This surmise given rise to by the notification is incorrect, as the Amendment 1 of 1970 presumes that all Scheduled Areas constitute tribal land and intrinsically, no licences or mining leases can be issued to a non-tribal. Even the G.O.Ms  No. 971 Revenue dated 7.10.1969  bars assignment of land to non-tribals.  Like wise, acquiring power of attorneys for tribal land by a non-tribal is prohibited under the LTR.  The government, via G.O.210, has issued a notification to this extent in 1988.  It is deplorable that the government did not plead this while such power of attorney holders sought orders from the High Court to fell trees (see Chapter 4).[71]

The Andhra Pradesh High Court, while disposing of a matter connected with the tribal status of a student whose father is a non-tribal and mother a tribal, ruled that the child's caste will be resolved by that of his father[72]. The proégé child in this case,  was thus declared a non-tribal. While protestations were raised by several feminist groups, no appeal was filed against the judgment. Prior to this judgment, such children, while benefiting from an non-tribal upbringing, also held tribal status, and became part of 'cream' of tribal society. What the High Court, has not considered, are the dilemmas faced by tribal women deserted by non-tribal husbands in bringing up their children. It is also significant, that while former tendency in such mixed marriages was towards tribal women marrying non-tribal men, the emerging trend is one of non-tribal women marrying tribal men.  This trend has resulted in tribal men often deserting their tribal wives/brides-to-be in favour of non-tribal women.  Disintegration of the once sacrosanct tribal values, and litigation follow.  Further chaos is engendered by the adoption of various non-tribal surnames by women and children is such mixed marriages.

The Parliament has been apathetic toward the reports of the Commissioner, Scheduled Caste and Scheduled Tribes.  One of the Commissioners has approached the Supreme Court soliciting Directions[73] to the Central and State governments to take appropriate action and to rectify situations where contravention of Constitutional provisions have occurred.  The Commissioner, an authority under the Constitution, is reduced to a defenceless state - t  he petition has been pending in the Supreme Court for years together without orders.[74]  The Courts should constitute a Special Bench to deal solely with tribal matters and induce the government to expedite matters.  This could eliminate prolonged litigation that benefits non-tribals, at the cost of the powerless tribal.  Academic and other forums such as the National Law School and Indian Law Institute must research the qualitative and quantitative performance of the judiciary in dealing with Scheduled Tribe matters.  Much needs to be done..... Quick redress - an absolute necessity in tribal issues - seems like some distant dream.

Ethnographic Inconsistencies in Census Records:

Census records of the State are full of inconsistencies. The are conflicts and overlaps to which attention has been drawn to in the Handbook of Basic Statistics (Tribal Development) published by TCR & TI.  Some of these are:

1.             The increase in population of the Andh tribal between 1961 and 1981 works out to 307.5%. While the 1971 census recorded the entire Andhra population as being in Adilabad District (Excepting one person in Hyderabad!), whereas the 1981 census reports small populations in almost all Districts.

2.             The use of the name term 'Hill Reddy' to denote Konda Reddis has resulted in a confused situation, wherein the Presdential Order lists the two as distinct and separate tribes.

3.             The Mannewar population in the low lands of Adilabad were wrongly included under Mannedora population in the 1981 census.

4.             Consideration of the Konda Kapu as being synonymous with the Konda Dora (this is actually not so), and the issue of Bagathas styling themselves as Konda Kapus.

5.             Listing of Koyas along with Gouds, rather than Gonds, in the Scheduled Tribes list.

6.             The migratory Lambadas are listed as Scheduled Tribes in Andhra Pradesh, Orissa and Bihar, while they are recognized as Scheduled Castes in Karnataka, Himachal Pradesh, Haryana and Delhi. Accordingly, their status is in a continual state of flux.

Many more such inconsistencies exist.[75] In the absence of comprehensive authoritative ethnographies, these flaws will remain unresolved, and will lead to greater conflicts.  For example, according to the 1961 Census Reports, the Lambada population was 96,174. This increased to 1,32,424 in the 1971 census and further rocketed to 11,58,342 by the 1981 census. This is indicative of the advantage of their being accorded Scheduled Tribe status in Andhra Pradesh, leading to increasing migration into the State.

Appendix 2

Different Judgements on Tribal Status

A. Judiciary

B. Presidential Orders and Ethnography:

C. Executive

Appendix 3

PENDING PROPOSALS BEFORE THE CENTRL GOVERNMENT