AP tribal voices in the wilderness

What does the apex court say?

In the administration of justice in the Fifth Scheduled Areas, Article 244 confers plenary power on the Governor to bring independent legislations in respect of tribal affairs in consultation with the Tribal Advisory Council (TAC).

*Tribals in AP worried as TDP govt wants to open up resource-rich mineral areas in Scheduled Areas to non-tribal owned companies for mining.
*Tribals are also facing displacement under Polavaram project, without any rights on land and forest.
*State govtseen delaying setting up of TAC as YSRCP represents 6 of the 7 ST constituencies in the State.
*TAC can object to unconstitutional actions of the State government. There is no constitutional mechanism to protect tribal interests.

The ruling TDP politics is subverting constitutional norms in the governance of Scheduled Areas in Andhra Pradesh. Tribal Advisory Council (TAC), a constitutional arm under the Fifth Schedule, has not been in existence since the TDP came to power in 2014. The reason for not setting up the TAC seems to be the TDP move to deprive the tribal representatives, especially those belonging to the opposition YSRCP, of representing tribal interests. YSRCP has secured 6 out of 7 ST reserved constituencies in the state. Neither the Governor nor the State Government is keen to constitute the TAC for smooth running of tribal welfare administration in the Agency areas.

The Fifth Schedule of the Constitution refers to administration and control over the Scheduled Areas and Scheduled Tribes in the State. The Governor has powers over the administration of scheduled areas. The Fifth Schedule recommends the constitution of a TAC in each State having Scheduled Areas. The Council’s duty is to offer advice on matters pertaining to the welfare and advancement of the Scheduled Tribes in the State. The Governor is specially empowered under Fifth Schedule to introduce independent legislations or amend the legislations proposed by the State or the Centre to ensure welfare of the tribals in the Scheduled Areas.

The apex court dealing with a case in 1967 on the administration of justice in the Fifth Scheduled Areas held that the Article 244 confers plenary power on the Governor to bring independent legislations in respect of tribal affairs in consultation with the TAC. Thus, the role of TAC is very crucial in the governance of Scheduled Areas. Therefore, negligence to constitute the TAC amounts to negating the rights of adivasis and stalling the process of governance.

However, the Governor cannot escape from his liability, whatever the political reasons may be. On the role of Governor in Fifth Scheduled Areas, the National Commission advocated that “Governors be made more accountable with regard to their roles vis-à-vis Scheduled Areas, namely ensuring the implementation of constitutional provision protecting adivasi rights.”

Overruling an earlier judgement the apex court in Bhuri Nath vs State of J&K, held that the powers exercised by the Governor under the Fifth Schedule are discretionary, and, while doing so, the Governor does not act on the advice of the Council of Ministers as in the case of normal general administration. Thus the role of Council of Ministers headed by Chief Minister in State, aiding the Governor under Art 163(1), is subject to the constitutional plenary powers conferred on Governor under Fifth Schedule. Unfortunately due to political shades, these constitutional provisions remain elusive and unable to deliver goods to the adivasis.

Adivasis are more worried about the role of present ruling TDP government in going ahead with several anti-tribal measures in Andhra Pradesh. Serious moves in this direction include measures aimed at displacing adivasis in large scale under Polavaram Project without determining their rights over the land and forest, and giving clearances for bauxite mining in the Visakha Agency Areas. Now there is no constitutional mechanism in place to scrutinise the decisions of State government, which are affecting the interests of adivasis in the State.

The track record of the ruling TDP in relation to the tribal affairs has also not been impressive to showcase. In 2000, when the TDP was in power, it made a vain bid to bring constitutional amendment to Fifth Schedule of the Constitution in order to open up the resource-rich mineral wealth in Scheduled Areas to private mining companies.

This unconstitutional move was attempted by TDP government following a judgement pronounced by the apex court in Samata Vs State of Andhra Pradesh in 1997, banning the State from transferring its land to non-tribal owned mining companies in the Scheduled Areas.

The TDP government is moving files up and down to get the clearance from its friendly NDA Government at the Centre. Therefore, the role of TAC is very important to check the excesses and irreversible social costs of the State’s economic liberal interests. Special protections are need of the hour to protect tribals and their interests to withstand the negative fallout of new economic policies. It is tragic that old protective measures are also being violated by the TDP government by negating the role of TAC.

Thus a proactive intervention by the Governor is imperative to correct the widening gap between the spirit of the Fifth Schedule constitutional provisions and the State’s denial to put in place the constitutional body to safeguard the rights of adivasis.