Direct state governors to exercise their power as per the Fifth Schedule of the Constitution

presidentMemorandum to President Pranab Kumar Mukherjee submitted by Adivasi Samanvay Manch, Bharat (Adivasi Coordination Front, India):

We the 10.43 crore of  Adivasis/ Tribals/Scheduled Tribes/ Aborigines / Indigenous Peoples of India, constitute 8.6% of the total population of the country (As per Census 2011) living in all the States of the country  gathered under the banner Adivasi Samanaway Manch, Bharat (Adivasi Coordination Front, India) and would like to State the following for your kind consideration and immediate direction to  the Government of India and all the Honourable Governors  as you are  the Constitutional  Custodian of Scheduled  Areas and Scheduled Tribes in the country.

The Adibasi Marang Gomke (Great Leader) Late Mr. Jai Pal Singh Munda, on 19th  Dec. 1946, in his speech in the Constituency Assembly, stated:

 “ Sir, if there is any group of Indian people that has been shabbily treated, it is my people. They have been disgracefully treated, neglected for last 6000 years…. The whole history of my people is one of continuous  exploitation and dispossession by the Non –aboriginals of India .”

We as Adivasis  of the country feel, it is true even today.  Even after 69 years of Independent of India the exploitation and dispossession has continued in different forms. We face systemic  marginalisation, discrimination, exclusion from all the development processes in the country. We continue to be over- represented among the poorest, the illiterates, the dispossessed.  We feel a willful negligence in the ruling class of the country and we are betrayed by the States.

 Constitutional and legal provisions

Since 1874 the  British rule recognized the special situation of tribals  and the  Tribal areas and  therefore  constituted the Excluded Areas/ Scheduled Areas/ Scheduled Districts with specific criteria for its governance. The  framers of the Indian Constitution too  continued the same with the  5th and 6th Schedule  in the Indian Constitution for the  governance of the tribal areas. In the last 69 years of the Independence of the country, the Governments have  enacted many laws for the protection against the exploitative forces like  The Scheduled Caste’s and Scheduled Tribe’s (Prevention of Atrocities) Act, 1985 and Rule 1995,   The Scheduled Tribe’s Bonded Labour Abolition Act, 1976,  and most of the States do not permit to transfer land of Scheduled Areas to non-tribals through legislations;  also legislations like the Panchayat (Extension to Scheduled Areas) Act 1996, The Scheduled Tribes and  Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, recognizing the customary governance system and  rights over the forest, agricultural land occupying for generations.

There have been Special Central Assistance is given to States/UTs to supplement their efforts in tribal development through Tribal Sub-Plan, Grants under the provision of article 275(1) of the Constitution to meet the costs of projects for tribal development and for raising the level of administration of Scheduled Area, and  many more policies, programmes for the socio-economic and political development of the Scheduled Tribes. There are also Institutions to  monitor  and evaluate the development programmes and the administration of the tribal areas  to ensure the fulfillment of the spirit of our constitution.

 Status of STs

The Government documents/reports and Census data  show that we, the Adivasis /Tribals are still in  the lowest strata of Indian society in  every aspects  of Human Development Index(HDI).  As per the  Statistical Profile of Scheduled Tribes in India 2013, Ministry of Tribal Affairs (GOI, 2013), the Literacy rate for STs is 58.96 %   while the corresponding rate of the total population is  72.99 percent in 2011. However, dropout rate is  70.9% in Classes I to X in 2010-11  for the STs and which is significantly higher than the all India figures. High prevalence of nutritional deficiency and chronic energy deficiency are observed among the ST women and children indicating nutritional problem being more serious for this category. Unemployment leading to immense poverty can be directly linked to the increase in terrorism and rising membership of tribals in the ranks of Maoists and Naxals.

Similarly, the Annual Report 2015-16 of the Ministry of Tribal Affairs shows that as on 31-12-2015, the total number of claims filed under FRA is 44,13,727 out of which 38,32,021 claims have been disposed off and 17,11,045 titles have been issued. During 1951-1990, 85 lakhs tribals were displaced due to dams, mines, industries, wildlife sanctuaries etc. which is 40% of total displacement of 2.13 crore people, against ST population percentage of 7.5%. Out of the 85 lakhs displaced, about 21 lakhs tribals were rehabilitated (Report of the Steering Committee for 10th Five Year Plan “Empowering the Scheduled Tribes” of Planning Commission).  Public servants in-charges of such delivery often are not available in the remote areas.

There were language barriers also. Besides, the dedicated institutions specifically designed for delivery of goods and services to the tribal population are weakened over the period of time. Apparently, weakening of institutions contributed in under performance of financial resources meant for tribal development. A  sizeable amount of funds available under TSP components of various Central Sector / Centrally Sponsored Schemes (CSS) administered by different Central Ministries / Departments is not spent for the benefit of tribal population in a manner it should be.

The  above situations have indicated  enough,  a sense of willful negligence, lack of political will, exclusion and systemic discrimination on Adivasis and their villages. The Governments have been grossly undermining  and violating  the constitutional provisions meant for Scheduled /Tribal  Areas and  the Villages. The  problems and the aspirations of the  Scheduled Tribes/Adivasi peoples and the tribal areas in India are not taken care.  There are following concerns that needs your kind attention:

Over lapping and  Arbitrary Laws and Legislations in Scheduled Areas:

  1. Law Applicable to Scheduled Areas: The Fifth Schedule clearly states in 5.(1) “Notwithstanding anything in the 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 Scheduled areas in the State …….subject to such exceptions and modifications as he may specify…….”. Further 5 (5) states, No regulation shall be made under this paragraph unless the Governor making the regulation has, in case where there is a Tribes Advisory Council for the State, consulted such Council.
  1. The governance of Scheduled Areas and the Tribes Advisory Council come directly under the President  and  Governor and not by the State,  as  stated in 5 (4). All regulations made under this paragraph shall be submitted forthwith to the president and,  until assented  by him, shall have no effect.
  1. The Tribes Advisory Council: The Tribes Advisory Council (TAC)consisting of not more than twenty members of whom, three-fourths shall be the representatives of the scheduled Tribes in the Legislative Assembly of the State. The Governor  may make rules or regulation (a) number of Members of the council, mode of their appointment and the appointment of the chairman of the council and of the  officers and servants , the conduct of its meetings and its procedure in general and all other incidental matters. But there is open violation of the same. The Honourable Chief Ministers have become the Chairpersons of the TAC (Most of them are  NON STs).
  1. The welfare and the advancement of the Scheduled Tribes are to be  on the advice of the TAC to the Governor , and Not on the advise of the Council of Ministers as per the article 163 of the constitution.
  1. Tribal Sub Plan: Under article 275 (1) of the constitution,  a Consolidated Fund of India  as grant-in-aid of the revenues is allocated  for the purpose of promoting  the welfare  of the STs, which  is known as Tribal Sub Plan (TSP). But it is being misutilized and not properly available for the STs.
  1. The Panchayats and Municipalities in Scheduled Areas: With regard to Panchayt, Article 243 M (1) of the constitution states, “ Nothing in this part shall apply to the Scheduled Areas referred to in clause (1) and the Tribal Areas referred to in clause (2) of the article 244. Similarly  with regard to Municipalities; Art. 243 ZC (1)  states, Nothing in this part shall apply to the Scheduled Areas referred to in clause (1), and the Tribal Areas referred to in clause (2) of article 244 of the constitution.

There need not be panchayats and Municipalities in Scheduled Areas. But the States have violated these provisions and have imposed the general panchayats and Municipalities.   The PESA Act 1996 was enacted ,  which allowed  self-governance as per the traditions in the tribal areas, but in the last 20 years most of the States  have failed to implement it.

State Violence, Insensitivity and Apathy towards Scheduled Areas & Scheduled Tribes:

We the Adivasi have  felt that  in the last 69 years of the independent of the country, the States have grossly violated the “Fifth Schedule” of the constitution.   As a result we the Adivasis of the Fifth Schedule States are denied of our constitutional rights and are deprived the enjoyment of our rights. We are displaced and dispossessed from our ancestral land and territories, from our resources for survival both physical and cultural practices in the name of development and civilization and face environmental disasters. In the name of development, many of us are robbed of our  properties , often innocents are killed in fake encounters by  security forces. Often we are termed as criminals, anti- nationals, accused falsely and put in the jails. We are harassed, extorted and treated inhuman way often by the state machineries.

We look forward for  your empathetic  attention  and action for the Scheduled Tribes and Scheduled Areas of this country for  protection of our traditionally inherited land,  stoppage of displacement,  stoppages of the influx of the Non-Tribals in the Scheduled/ Tribals Areas, for a peaceful and good government, protection  and practice of our language and culture, our faith which are protected in the constitution.

We would like to present before  you our dreams, the vision of our development.

Our Vision

  1. A Non-discriminatory, participatory development planning, decision making, implementation, evaluation with regard to laws, policies, programmes and resources at the National, State, District , Block and Village level with the inclusion of Tribals.
  2. The Fifth schedule of the Indian constitution should be the broad framework for the administration and the development of the tribes and the tribal areas. The development which are based on the tribal culture and values, ecologically sensitive and sustainable,  respect the principle of Free, Prior and Informed Consent.

Our Proposals: 

1. Administration of Scheduled Areas, Tribal Areas and Tribal VillagesThe provisions of the Fifth Schedule as per Art. 244 (1) and the Provisions of Sixth Schedule as per Art. 244 (2) shall be implemented in words and spirit   to administration and control of the  Scheduled Areas, Tribal Areas and the Scheduled Tribes villages.A sufficient and defined directions be issued on the functions of Governor  in the Scheduled Areas and in Tribal Areas and Tribal villages of the State.

2. The Chairman seat of the ‘Tribes Advisory Council ‘(TAC) be reconstituted, by removing the Non ST members and/or Chief Ministers of all the Fifth Scheduled States immediately.

3. The Governors shall function as per the advice/consultations with TAC for Schedule Areas and Tribal Areas,  as per the provisions of the Fifth Schedule and Not on the advice of the Council of Ministers as per Art. 163 (1) of the Constitution.

4. Laws in the Scheduled/Tribal Areas: The Governor may direct any particular Act of Parliament or of the Legislature of the State shall NOT Apply to scheduled Areas in the state subject to such exceptions and modifications so as to have retrospective effect as per Fifth Schedule 5 (1) and (3) and (5).

5. The decrease in numbers of Scheduled Tribes in Scheduled Areas in every Census, which is a great concern for the STs. The permanent settlement of Non STs  in Scheduled Areas, has been observed as negative impact on their socio- cultural practices; hence as per Art. 19 (4) and (5)  of the constitution immediate direction be issued for restriction of Non STs for permanent settlement in Scheduled Areas, Tribal Areas as to protect the interests of  Scheduled Tribes in the country.

6. Funds and Development: There are enough funds in the name of Tribal development by Union government including UN bodies, e.g; The Consolidated Funds, The Scheduled Tribes Special component plan (SCP), The Tribal Sup Plan (TSP)…etc . under Art. 275 (1) of the constitution. All these funds be given to the TAC for better utilization and welfare and advancement of the STs.

7. The Provisions of the Panchayat (Extension to the Scheduled Areas) Act or the PESA Act 1996 , the  rule be immediately promulgated and immediate direction be issued for its implementation in the Scheduled Area States and other Tribal dominates Areas with due structure.

8. The Scheduled Tribes and other Traditional Forest dwellers (Recognition of Forest Rights) Act 2006, The Land Act 2013, The SC/ST POA Act 1989 and its rules be implemented. All other laws need to be consulted by the TAC and the Governors or could be barred in Scheduled Areas.

9. The Ministry of Tribal Affairs  together with a group of Intellectual Tribals design for better administration in the Scheduled Areas and Tribal Areas  based on the Panchsheel of Nehru immediately. The Tribal youth be given the prior opportune for administrative services.

10. All the Scheduled Tribe communities/ persons be recognized as STs as per the presidential order of 1950, wherever  and whichever Sate they may reside , under Art.13 (a) of the constitution and the MADA, Clustered and Tribal villages be included in the Scheduled Areas of the Constitution.

11. Scheduled Tribe languages be recognized in the Eighth schedule  of the Constitution.

12. The “SARNA and Gondi” be recognized as Adivasi religion in religion code of the  National Census. This may be  known that in  2011 Census the population under “Sarna” code number is  49,57,467, where as the number of Jain religion   is  44,51,753.

13. The Survey settlement / habitat rights in Scheduled Areas and Tribal villages be made on the basis of their  local ancestral heritage and territory (Manki-Munda- Manjhi, Padha….etc.) system.

14. The president may direct the States / Governors under Art. 339 (2)  for drawing up an execution  plan of the  of schemes specified  which would be essential for the welfare of the STs in the state.

15. Administration Structure for Scheduled Areas:

  • National Level:  National Tribes Advisory Council (NTAC) with Secretariat be constituted and it could be in the Office of His Excellency. The Office  is  to coordinate  the  States all over  the country.
  • State level:  Tribes Advisory Council (TAC) needs to be empowered, with Secretariat, which could coordinate in the State. A Tribal Affair/Development office be opened in the Honourable Governor’s Office and it can coordinate in  all districts of the State.
  • District level:  In all Scheduled District, District Autonomous Council (DAC) be constituted with its Office and Secretariat  which could coordinate to all Intermediate /Block Level.
  • Intermediate or Tribal Block Level: Tribal Block  Advisory/ Regional Council (BAC/RC) be constituted with separate Office with officials that could coordinate the villages and Gram Sabhas.
  • Village Level: In Scheduled Areas ,as per PESA Act,  Gram Sabha  be constituted  as per PESA 4 (b)and it functions as per PESA Act.

16. Development Expenditure for Scheduled Areas/ Tribal Areas: The budget preparation and development expenditure needs a separate physical and financial targets. It needs to be separated from States, Districts and Blocks.

17. Scheduled Areas Administrative Service Commission: There should be ‘National Scheduled Areas  Administrative Service Commission’. Those who wish to render service in Scheduled/Tribal Areas need to learn and understand Tribal’s social, cultural and traditions and geographical situations . Preference shall be given to the Tribal youths and interested in the development of the Scheduled Areas.

18. National Tribal Planning Commission: There shall be a National Tribal Planning commission based on protective and development (Consisting of Tribals) with an office  which would be attached  to NITI Ayog  in the interest of  Scheduled Tribes.

19. Annual Evaluation, Monitoring Committee for Scheduled/ Tribal Areas: A Team of Expert Tribals and Non -Tribals  could  monitor and evaluate, and make proposals  for coming years activities.

20. Infrastructures from Gram Sabhas- Intermediate/Regional – District Autonomous Council- Adivasi Darbar in the State level: The Infrastructures from Gram Sabhas to Adivasi Darbar in the State level be made for Adivasis Peoples.

21. We the STs, be recognized as “Adivasis/ Aborigines/ Indigenous Peoples” of India.

Therefore, as you are the Constitutional  custodian of the Scheduled Areas/ Tribal Areas and the Scheduled Tribes;  we  the Scheduled Tribes of India, request your good office  for   your  kind consideration of the above and direction to all the State Governors for a better governance  within (three months or a specified time period).  If we do not get any response from your  good office, the  Scheduled Tribes of India  will have no choice but to start movement all over the country.

Among those who handed over the memorandum included Amar Singh  Chaudhari from Gujarat, George Tirkey from Odisha, Gajanan Brahmane from Madhya Pradesh, Ms Tarika Lakda from Chhattisgarh, Kaluram Dhodhade from Maharashtra and Niel Tirkey from Jharkhand

 

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