Plea to bring tribal areas under Fifth Schedule

By Our Staff Reporter

PALAKKAD, SEPT. 23. The most backward tribals of Attappady Hills who stand marginalised and alienated from the mainstream of society, have urged the State Government to bring all the tribal areas of the State under the Fifth Schedule of the Constitution.

Their organisations, `Guruva' and the Girijan Sevak Samithi, have filed a petition in the Supreme Court praying ``for strong direction to the Union Government and the authorities concerned to declare the tribal-concentrated areas of Kerala as Scheduled Area with the status of Union Territory, according to the Article 244 (1) of the Constitution and give direction to control the migration into the tribal areas from plain area at the earliest''.

Mr. C. Baburaj, secretary of `Guruva', and Mr. K.P. Raveendran of the Girijan Sevak Samithi, who filed the petition in March this year, told The Hindu here today that since the State Government has failed to honour the constitutional commitments on tribal development from the recommendations of the U.N. Dhebar Commission in 1960, there exists a constitutional crisis in the tribal areas of the State. When the tribals moved the Kerala High Court against the amendment to the original 1975 Act (The Kerala Scheduled Tribes Restriction on Transfer of Lands and Restoration of Alienated Lands) in 1999, the court had stayed the new bill. The previous LDF Government had filed a Special Leave Petition (SLP) against this in the Supreme Court, which issued a stay on the High Court order.

One of the main demands of the agitating tribals led by Ms. C.K. Janu is that the UDF Government led by Mr. A.K. Antony should withdraw the SLP filed by the LDF Government as it went against the interests of the tribals.

They said the statements filed by the State on the SLP are ``illegal, wrong and against the interests of the tribal people and principles of the Fifth Schedule of the Constitution''.

They said the protection and advancement of tribals in the non- Scheduled Areas of Kerala is under the Fifth Schedule as per the recommendation of the Scheduled Areas and Scheduled Tribes Commission (Dhebar Commission). This constitutional commission was constituted in 1960 to investigate and report on the problems of the Scheduled Tribes.

During 1960-61 when the commission was investigating the tribals' problems, some of the State Governments, including Kerala, submitted their suggestions before it on the scheduling of additional areas under the Fifth Schedule. The Kerala Government suggested 1,064 sq. miles with a tribal population of

1,12,000 for declaration as scheduled areas, which was 63 per cent of the total population of 1,76,129 during that period.

The commission suggested an alternative scheme, in case of difficulty in creating Scheduled Areas, which would give tribals the advantages they would otherwise get under the Fifth Schedule.

The Fifth Schedule guards the interests of the tribals, protects them against exploitation by money lenders and protects their way of life. But the Kerala Government did not enact the general legislation as per the alternative programme under the Fifth Schedule for the protection of tribal land.

Due to this, the situation created constitutional difficulties for the first time in the tribal areas. It became rather serious by the early Seventies when the Union Government decided to have a comprehensive review of the tribal policy. A new strategy for tribal development was accordingly worked out during the Fifth Five Year Plan (1974-79), which is generally known as Tribal Sub Plan Strategy. This strategy covered all areas of tribal concentration as also dispersed tribals.

After that came the sub plan strategy and the Kerala Legislature enacted the 1975 Act. But even after the proposed time (November 11, 1975 to November 11, 1985) to implement the Act, the Legislature did not enact the rules to implement the Act. This again created a constitutional crisis.

The State Government did not inform the Planning

Commission or the Ministry of Home Affairs of any difficulties in implementing the 1975 Act even a decade later. Where the Union Government was concerned, it has the power to give directions to the State under the Article 339(2) and para 3 of the Fifth Schedule of the Constitution. But it did not issue any directions.

They said the Legislature brought rules only in October 1986 to implement the 1975 Act. By this time huge areas of tribal land had been alienated by various means like lease, mortgage, sale and land-grabbing.

The Legislature in compliance with the Constitutional mandate para 5(2) of the Fifth Schedule of the Constitution, enacted the Kerala Scheduled Tribes Restriction on Transfer of Lands and Restoration of Alienated Lands, 1975, under the Alternate Programme suggested by the Scheduled Tribes Commission.

The State Government brought an amendment to the Act in 1996. But it did not get the assent of the President of India though it was passed by the Assembly unanimously, with the lone dissenting voice being that of the present Agriculture Minister, Ms. K.R. Gouri.

In 1999 another amendment was brought without the approval of the State-level Tribal Advisory Council which was mandatory, they said.

As per the Fifth Schedule provision para B part 4(1), the State Government had to discuss and get the approval of the State-level Tribal Advisory Council. After 1986, the advisory council has been defunct. Thus, the Act of 1999 was not for protecting the tribal lands under the Alternative Programme and Fifth Schedule Provision. The original Act of 1975 was included in the IXth Schedule of the Constitution and received the assent of the President of India. In this situation the State Legislature cannot amend it without getting the prior permission of the President, the tribal leaders said.

The Supreme Court stayed the operations of the order passed by a Division Bench of the High Court in a contempt of court case no.542\98 on October 11, 1999 and on December 16, 1999 in Special Leave Petition (c) No.17910\99 and 2220\2000. The Supreme Court by order dated August 7, 2000, disposed of the SLP with a direction to the High Court to hear the main writ petition. The Division Bench of High Court has heard the main writ petition as per direction of the Supreme Court by order dated August 7, 2000 and passed the judgment in O.P No.26499\99 and 25332\99 on August 24, 2000.

The High Court struck down the provisions to Section 5(1), Section 5(2), Section 6 and Section 22 of the Kerala Restoration on Transfer By and Restorations of Lands to Scheduled Tribes Act, 1999 after holding the Act as unconstitutional and void.

Thus, the petition filed by the tribal organisations in the Supreme Court against the SLP filed by the Kerala Government said that ``the State cannot protect the tribals from social injustice and all forms of exploitations. The State has not achieved the mandate of Article 46 and violated the Articles 330, 332, 335, 338, 341 and 342 of the Constitution''.

Hence, the tribals pleaded for an order from the apex court to give direction to the Union Government and other concerned authorities to declare the tribal concentrated areas of Kerala as Schedule Area with the status of Union Territory as per Article 244 (1) of the Constitution.

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