Lesson 8 Policies and Challenges : Fifth and Sixth Schedules; Forest Rights Act Important Notes

 

Lesson 8 Policies and Challenges : Fifth and Sixth Schedules; Forest Rights Act

Article 244 of the Indian Constitution that includes the Fifth and the Sixth Schedule1 mentions the special laws for the administration of the Scheduled areas and Tribal areas. It guarantees safeguards for the protection of the tribal communities. These laws have existed since the colonial times.

Various schemes and policies have been made in accordance to the provisions of the Fifth and Sixth Schedules for the tribal communities. Inclusion of the Tribals into the developmental model along with safeguarding the tradition and customs of these communities was one of the major issues being faced by the framers of the constitution. Out of the three viewpoints of (1) Isolation, (2) Assimilation and (3) Integration, Jawaharlal Nehru found the method of integration as best suited for their development.

Before the implementation of PESA, the tribal areas were administered according to the Fifth Schedule. In 2006 the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act granted rights to lands and forest and tried to bring them towards the mainstream development. The essay further discusses these laws.

The Sixth Schedule of the Constitution deals with the tribal communities of four states of North East India, Assam, Meghalaya, Tripura and Mizoram. The Sixth Schedule provides for the establishment of the Autonomous District Councils granting them rights to make and implement laws on various legislative subjects.

The essay is divided into various sections. Firstly, the essay discusses the historical trajectory of the Fifth and Sixth Schedules. Secondly the essay discusses the various schemes and policies that have been implemented for the tribal development from time to time. The essay concludes with a discussion of the implementation of the Fifth and Sixth schedules.

 

Fifth and Sixth Schedule of the Indian Constitution: A Historical Account

The Government of India Act 1935 categorised the areas inhabited by the tribal communities into excluded and partially excluded areas, to be administered through a separate law. After independence, these areas were included in the Sixth and Fifth Schedules of the Constitution of India, respectively. Since the tribal areas were rich in minerals it was being encroached by the colonial administration.

Since the adivasis did not bother much about the laws and did not allow any outside influence over their community, these areas were categorised as “non-regulation” and were brought under a separate law. It was further divided into excluded and partially excluded areas. Non-regulation Act 1796 was the result of the Rajmahal Hills.

In the year 1839, District Act of ‘Ganjam’ and ‘Vishakhapatnam’ was passed and in 1874 Scheduled Areas Act was passed. In the year 1919 the areas were divided into excluded and partially excluded areas. After the Government of India Act 1919 was passed, many other acts were passed in this context like the ‘Village Panchayat Act’ in Madras, Bombay and Self-Government Act in Bengal etc.

The recommendation of the Simon Commission was implemented through the Government of India Act 1935 (Bijoy 2012: 9) and the frontline areas of Assam, Lakshadweep and Punjab (present Himachal Pradesh) etc. were included in completely excluded areas and Madras Province, Bombay, Bengal United Central Province and Orissa were included in the partially excluded areas.

 

Major Provisions of the Fifth and Sixth Schedules

The Constitution provides the Governor of the State powers to administer and control the Scheduled areas and the scheduled tribes. Paragraph 5 (1) of the Fifth Schedule grants the Governor the right to direct through a public notification that “any particular Act of the Parliament or of the Legislature of the State shall not apply to a Scheduled Area…”(Constitution of India: 2011).

The powers of the Governor are restricted in the following two ways: (1) the governor works on the advice of the Tribes Advisory Council, and (2) all regulations will be implemented only after the consent from the President of India (Kurup, 2014: 7-8). Despite these important provisions the adivasis are deprived of their rights.

Apart from specific laws and policies, some article of the Indian Constitution also lays down safeguards to protect the Scheduled Tribes such as Article 15 prohibits discrimination by the State against any citizen on grounds ‘only’ of religion, caste, race, sex and place of birth (Article 15), the general people are restricted from buying lands of Adivasis (Article 19 (5)), the language and traditions of the adivasis have been protected under article 29, Article 14 (4) provides for reservation in jobs and article 16 (4) concerns with the jobs of the scheduled tribes.

There are other major provisions in the Constitution related to the Scheduled Tribes. Article 342 talks about the customs and traditions of the Scheduled Tribes, article 330 and article 332 deals with reservation of seats for the Scheduled Tribes within the Lok Sabha and the Vidhan Sabha respectively.

The Scheduled Tribes coming under the Sixth Schedule are more developed as compared to the Scheduled Tribes of other states. The Constitution provides them with adequate rights in the form of ‘Autonomous District Councils’ and the ‘Autonomous Regional Councils’ (Kurup 2014: 8). Article 244 (2) of the Constitution describes the Sixth Schedule. The Sixth Schedule comprise of the Scheduled Tribes of Assam, Meghalaya, Mizoram and Tripura. According to the part 2(1) of the Sixth Schedule every autonomous district should have an autonomous district council of 30 members out of which maximum 4 members are to be elected by the Governor and other members are to be elected through adult franchise.

However the laws made by these councils will become effective only after the consent from the Governor. The next section discusses the principle of Panchsheel and the tribal sub-plan.

 

The Principle of Panchsheel, Tribal Sub-Plan and other provisions for the scheduled tribes

The Constitution of India has various articles for the social and economic development and empowerment of the Scheduled Tribes but there is a lack of a national policy to implement them properly. Pandit Jawaharlal Nehru’s ‘principle of panchsheel’ has been the guiding principles after independence to formulate policies for the administration of the Scheduled Areas and the Scheduled Tribes.

The five principles of Panchsheel are:

(a) People should develop along the lines of their own genius and we should avoid imposing anything on them. We should try to encourage in every way their own traditional arts and culture.

(b) Tribal rights to lands and forests should be respected.

(c) We should try to train and build up a team of their own people to do the work of the administration and development. Some technical personnel from outside will no doubt, be needed, especially in the beginning. But we should avoid introducing too many outsiders into tribal territory.

(d) We should not over-administer these areas or overwhelm them with a multiplicity of schemes. We should rather work through, and not in rivalry to their socio-cultural institutions.

(e) We should judge results, not by statistics or the amount of money spent but by the quality of human character that evolved.

The Tribal Sub-plan was introduced with the objective of including the scheduled tribes within the overall development model. In other words, it was an attempt to reduce the inequality between scheduled tribes and other communities through education, health, income, freedom from oppression and equality of opportunity.

 

Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act (1989), PESA Act and other schemes and policies

The Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act (1989) was introduced by the then Prime Minister Rajiv Gandhi to prevent atrocities on the Scheduled Tribes.

The Scheduled Castes and Scheduled Tribes Commission would be established to look after the complaints from the community. Also, they are being provided with scholarships to encourage them towards education.

In June 1994, a 22 member committee was formed under the chairmanship of Dileep Singh Bhuria to look into the matter of local self-governance in scheduled areas. The committee submitted its report to the government with important recommendations in January 1995 where it urged to extend the provisions of the 73rd and 74th amendment to the Constitution to the Scheduled areas.

 

The recommendations were as follows:

(1) Every hamlet of the Scheduled Areas should be recognised as Gram Sabha, irrespective of their numbers.

(2) The draft law should be prepared in such a manner that autonomous district councils could be established in the Fifth Scheduled Areas should be based on the broad outline of Autonomous District Councils in the Sixth Schedule.

(3) The Tribes Advisory Council “envisaged in the Fifth Schedule, as a consultative body at the State level, needs to be reformed into an effective organisation. The Chief Minister of the state should be its Chairperson…”.

(4) The tradition and customs of the adivasis should be respected and the present system should be in coordination with the customary practices.

(5) “The proposed institutions in the Scheduled Areas and Tribal Areas should be vested with adequate competence to deal with emerging problems among tribal people like growing indebtedness, land alienation, deforestation, ecological degradation, displacement on account of industrialization and modernization”.

(6) Gram Sabhas should be empowered to prepare plans, budgets for the tribal people. They should also be vested with the power to identify beneficiaries for poverty alleviation and other programmes.

(7) If the Scheduled area has majority population of scheduled tribes the panchayat chairperson and the vice chairperson should be a person from the scheduled tribe.

(8) The panchayats should be given more effective powers to reach the goal of self-governance.

(9) The Gram Sabha to be given financial powers with regard to local level development.

(10) In the Scheduled Areas land should be acquired with the consent of the Gram Sabha.

(11) The panchayat should be allotted funds according to Article 243 (H), 243 (1), 275 (1) (Constitution of India 2011).

Therefore, accepting the recommendations by the Bhuria Committee, the President granted consent to the PESA Act on 24th December 1996 and the provisions about Panchayats given in Part IX of the Indian Constitution was extended to the Fifth Schedule Areas with some changes. The Bhuria Committee gave 2 reports, one for the village areas within the Fifth Schedule and the other for the establishment of Municipalities. But the law regarding the Municipality is not implemented yet.

 

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, also known as the Forest Rights Act (FRA) was implemented in 2006 to provide the tribals with the right to forest lands. According to Ramchandra Guha, before independence forests were used by the colonial government to fulfil their strategic needs and after independence forests have been used to fulfil the interests of the corporate and big industrialists.

Except for Jammu and Kashmir this Act is applicable all over India. According to Section 2(c) of the Act, the definition of ‘forest dwelling Scheduled Tribes’ means “the members or community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for bona fide livelihood needs.”According to Section 2(c) of the FRA 2006, “to qualify as FDST and be eligible for recognition of rights of rights under FRA, three conditions must be satisfied by the applicant/s, who could be “members or community”: 1. Must be a Scheduled Tribe in the area where the right is claimed; and 2. Primarily resided in forest or forestland prior to 13-12-2005; and 3. Depend on the forest or forests land for bonafide livelihood needs.” It also grants tribes the right to protect, regenerate, conserve or manage any community forest resource which they have been traditionally protecting and conserving.

Therefore the important thing to note about the Act is that according to Section 3a forest dwellers have right to hold and live in the forest land under the individual or common occupation for habitation or to procure livelihood needs. Those forest dwellers communities who have been through generations dependent on the forests for their livelihood have been given ownership rights.

However the Act has been criticised for various reasons. For example, it has been argued by the environmentalists that granting of pattas on forest lands would destroy the forests, few people have also argued that the Act provides for a very difficult procedure to obtain pattas due to which many peoples’ claims would be rejected.

“Balchandra Mungekar Committee” Report on Tribal Self-Governance and Development

The Fifth and Sixth Schedules of the Indian Constitution, PESA Act and other laws have provided protection and safeguards to the scheduled tribes; still they are deprived of their rights. The government in the year 2009 formed the ‘Balchandra Mungekar Committee’ to look after the issues of development among the adivasis (Bijoy 2012: 12). The Committee gave following recommendations:

(1) the Gram Sabhas should be given powers to resolve issues related to the tribal life.

(2) the powers of the Gram Sabha should be in accordance to the ‘Directive Principles of the State Policy’ in order to establish ‘village republics’ as per article 40 of the Constitution (Singh 2013: 41-42).

(3) there should be proper implementation of the Self-Governance as given in the PESA Act

(4) Like Madhya Pradesh, governments of other states too should make amendments to the Land Revenues by making proper laws and the power to manage the minor resources to the Gram Sabha.

(5) Acquiring of land and control of natural resources for personal development in Scheduled areas is unconstitutional according to PESA Act. However the Committee Report has not been completely implemented.

That has been the reason behind the various acts and laws such as the principle of Panchsheel, Tribal Sub-Plan, Autonomous District Council, PESA Act and the FRA etc., along with the Fifth and the Sixth Schedule. While the North Eastern States had autonomous District Councils, the Tribes of other regions of India were granted the rights to self-governance and autonomy through the PESA Act in 1996 which extended the provisions of the 73rd and 74th Amendment to the Fifth Schedule areas. The specialty of this Act was that the tribes were given rights to practice their traditions and customs along with the provisions of the Fifth Schedule but the aims and objectives have not been fulfilled yet. However, it is accepted by all that without the progress of the Tribes the complete development of the nation is impossible.