Why India Needs Scheduled Tribes to Educate its Future Judges

The Wire | Nandini Sundar |April 28, 2020

The rights of adivasis in the Indian constitution are not an act of benevolence to “mainstream and uplift them” but a recognition that the “mainstream” of Indian society has many streams that flow into it, each of them equally valid.

The recent five-judge bench Supreme Court judgment in Chebrolu Leela Prasad Rao and Ors v State of AP and Ors, shows us once again how little the 5th Schedule of the Indian constitution which is meant to protect adivasi rights is understood.

The reasoning in the judgment – which struck down an Andhra Pradesh government order from 2000 providing 100% reservation for Scheduled Tribe teachers in Scheduled Areas of the state – moves perilously close to dismantling the entire edifice of the 5th Schedule.

If 100% reservation for teaching jobs is not permissible, the next step will be for someone to argue against the ban on alienation of tribal land, or overturn the Samata judgment prohibiting mining leases being given to non-tribals in 5th Schedule Areas in undivided Andhra Pradesh. After all, both these ‘discriminate’ against non-tribals. As non-adivasis from other districts flood scheduled areas leading to clear demographic change, the clamour to do away with the protective provisions of the 5th Schedule is only getting louder.

The Andhra Pradesh G.O. of 2000 was aimed at promoting education in tribal areas and addressing the problem of rampant teacher absenteeism. As anyone even slightly acquainted with the problems of tribal areas knows, non-tribal teachers are often reluctant to travel to or live in remote adivasi hamlets. Another big problem is language. Many non-tribals, including lower government officials, have lived for years in tribal areas without feeling the need to learn tribal languages. At the primary level, mutual incomprehension between non-tribal teachers and tribal students hampers the basic education of children.

The judges tell us that “It is an obnoxious idea that tribals only should teach the tribals” (para 133), but for far too long, the really obnoxious idea that has pervaded the educational system and is reflected in judgments like this one is that only non-tribals should teach tribals, to “uplift and mainstream” them because “their language and their primitive way of life makes them unfit to put up with the mainstream and to be governed by the ordinary laws” (para 107).

A standard view is that expressed by Justice S.B. Sinha in his (minority) judgment of the Andhra high court on the same issue in 2001, where non-tribal teachers are axiomatically assumed to be more efficient and meritorious (para 86); and “(f)or upliftment of the educationally backward people, it is necessary to impart education through teachers who are more informed and more meritorious regardless of their caste”(para 126).

For the Supreme Court to say, “They are not supposed to be seen as a human zoo and source of enjoyment of primitive culture and for dance performances” (para 107 of Chebrolu) betrays a mentality that thinks of Scheduled Tribes precisely in those terms rather than as people with the right to define their own educational future. For far too long, education in India has been seen by the establishment as a ‘civilising’ mission designed to make adivasis and dalits into mental clones of the upper castes, even if they continue in their subordinate jobs. Merit is defined merely as efficiency in achieving this goal, rather than in terms of success in tapping indigenous ecological knowledge, preserving adivasi languages and culture and giving confidence to adivasi students by acting as role models. Even though many adivasi teachers have also internalised this idea of non-tribal superiority, having hundred per cent adivasi teachers in Scheduled areas is a small step towards reversing this condescension.

The idea behind the order goes back to the educational experiments pursued by anthropologists and advisors to the Nizam’s government, Christoph Von Furer-Haimendorf and W.G. Grigson, and the efforts by concerned administrators like B.D. Sharma, S.R. Sankaran, B.N. Yugandhar and E.A.S. Sarma to provide a governmental alternative to the pull of the Naxalites. The legal defence of the government order, however, has fallen to the lot of the anthropologist J.P. Rao, along with adivasi teacher and leader Sondhi Veeriah, as well as lawyers like K. Balagopal and Rajeev Dhawan, who fought the case pro bono.

The Supreme Court judgment came in response to an appeal by non-tribals against the majority 2001 high court judgment, which upheld the G.O. of 2000. The Supreme Court verdict essentially replicates the minority view in the high court in favour of non-tribals.

The court framed four questions for itself:

• the first deals with the power of the governor in 5th Schedule areas to make laws, and whether this can override Part III of the constitution or fundamental rights;
• the second, whether 100% reservation is constitutionally permissible;
• the third, whether the GO involves a classification under Article 16 (1) dealing with equal access to state employment, rather than under 16 (4) which provides for reservation;
• the fourth, to do with the reasonableness of the eligibility requirement for reservation, i.e. continuous residence in the area since 1950.

In answering each of the questions, sadly, the court shows itself unmindful of the realities of the country and the history of the constitution it has inherited.

The scope of the governor’s law-making powers

The court’s first argument in striking down the 100% reservation is that this was in effect a new law, since G.O. Ms. No. 3 of 2000 did not amend the Act dealing specifically with reservation, and rules did not count as an act of parliament or state legislature. Under Section 5 (1) of the 5th Schedule, the governor can only apply or decide not to apply laws that have been framed by the parliament or legislature, not make fresh law. On the same point, the majority judgment of the HC in Pulusam Krishna Murthy had held that “application of law is one of the recognised forms of legislation” (para 21) and “it is illogical to hold that the same power does not extend to delegated legislation” (para 37 of judgment by Justice V.V.S. Rao).

Whichever interpretation one chooses, it is important to remember that when the law-making power of the governor under the 5th Schedule was discussed in the constituent assembly’s Sub-Committee on Excluded and Partially Excluded Areas, the concern raised was not whether s/he could or should make fresh law, but that this power should not be used undemocratically, exercised over and above the elected legislature. It is for this reason that a Tribes Advisory Council was created and the governor was required to refer matters to it. (Para 11b of the sub-committee report). In this case, the Tribes Advisory Council had concurred with the 100% rule.

Fundamental rights vs Fifth Schedule?

On the question it posed to itself – of whether the legislative powers of the governor under Section 5 of the 5th Schedule could override fundamental rights – the Supreme Court answered in the negative.

On the face of it, who would quarrel with the proposition that any governor enacting a law or applying a law to Scheduled areas should be mindful of fundamental rights? For instance, one would hardly condone not applying a law on ‘witch’ killings because it was a ‘customary’ practice. But to argue that fundamental rights – and that too when interpreted narrowly as in this judgment as ‘equality’ for non-tribals– should always trump other parts of the constitution is to forget the way the constitution was crafted to allow for diversity-in-unity, whether Article 370 or its 5th and 6th Schedules.

Both fundamental rights and the 5th and 6th Schedules were intrinsic and coeval pre-conditions to the existence of the constituent assembly (CA). Clause 20 of the cabinet mission plan under which the CA functioned provided for an advisory committee to report on “the list of fundamental rights, the clauses for the protection of minorities, and a scheme for the administration of the tribal and excluded areas.” The rights of the Scheduled Tribes in the Indian constitution are not an act of benevolence to “mainstream and uplift them” but a recognition that the “mainstream” of Indian society has many streams that flow into it, each of them equally valid.

In the framework of the constitution, as Justice V.V.S. Rao noted in the majority judgment of the HC (para 16), there are several laws, including freedom of movement in Article 19 (5), whereby “the protection and interest of Scheduled Tribes would take precedence over the fundamental rights of the non-Scheduled Tribes.”

The Supreme Court makes much of the fact that G.O. of 2000 comes into direct conflict with a presidential order under Article 371 D which takes the district as the unit of recruitment and reservation for jobs. This order came into being since people from some districts of undivided Andhra were grabbing jobs everywhere. The court claims that since non-tribals cannot apply outside their district, and they are barred from Scheduled areas, they lose out on employment altogether. This is, unfortunately, an altogether specious conclusion since Scheduled areas form only a small portion of any district. For example, the Scheduled area in Visakapatnam district (the maximum in any district) is 52.9%, in Srikakulam it is 22.09% and in West Godavari (the lowest) it is 13%. Within these scheduled areas, the STs are in a clear majority and therefore deserve to have teachers from their own language communities – in Paderu/Visakapatnam, STs are 88% of the population, in Srikakulam 78% and in West Godavari, 47%. Outside the scheduled areas, only 6% of the posts are reserved for STs, 15 % for SCs, 25% for Backward Classes and 54 % (in effect) for the upper castes.

The minority HC judgment by Justice Sinha – now endorsed by the Supreme Court – also claimed that 100% reservation for ST teachers discriminated against non-ST students in Scheduled areas:

“If a school is manned by the teachers of a particular class, the students belonging to the other classes would be discriminated against.” (para 111).

It is amazing how those who talk so feelingly about the need for a caste blind society and the problem of casteism only see themselves as victims of caste prejudices. They never consider the possibility that adivasi (and dalit) children taught by caste Hindus may be discriminated against.

Article 16 (1) or Article 16 (4)?

The majority bench of the high court in Pulusam was persuaded by the argument made by advocates K. Balagopal and others that the GO providing for 100% reservation was not made under 16 (4) which provides for reservations, but under 16 (1), which promises everyone an equal chance at state employment, and allows for reasonable classification in achieving this. Teaching posts in Scheduled areas, they argued, were a different category of jobs altogether – with different requirements and different objectives.

The SC, however, is categorical that reservation for Scheduled Tribes (as well as SCs and OBCs) is exhausted under 16 (4), and that 16 (1) is only for other classes not covered by 16 (4) though it is not clear who these other classes would be. In any case, we are told, without further explanation, “Assuming, for the sake of argument, it is to be a case of classification under Article 16(1), it would have been discriminatory and grossly arbitrary without rationale and violative of constitutional mandate.”

Original dwellers vs immigrants

Finally, we come to the fourth question which is at the heart of many contentious issues in the country today – how to balance the rights of immigrants and the rights of original dwellers. In the case of Assam, this has led to 19 lakh citizens being disenfranchised in the name of the updated National Register of Citizens; in Kashmir, however, the protection for domiciles embodied in Article 35 A was portrayed as illegitimate.

In the case of Scheduled Tribes, while commenting on the eligibility requirement for jobs, the Supreme Court does not appear to think the problem of demographic swamping by immigrants is an issue at all, nor does it concern itself with the rationale behind Scheduled areas in 1950: “The G.O. in question requires candidate or the parents to reside in the area continuously w.e.f. 26.1.1950 to date. There is no rhyme or reason to require continuous residence for last 50 years or more. It overlooks the rights of various other persons who might have settled decades together in the area in question… The same is fixed in highly unreasonable and arbitrary manner and limits zone of consideration to minuscule where an opportunity for public employment has to be afforded to all concerned with reasonable rights.” (para 147).

Judging by the continued over-representation of Hindu upper castes in gainful employment in this country, one might well say that the same has come to be fixed in a “highly unreasonable and arbitrary manner” and there is no rhyme or reason to the upper caste Hindu conviction that it is only they who have the natural right to rule over, provide justice to, or teach in this country, and that children of all other castes and religions must be grateful for the education and justice they get.

Can the Executive Divert District Mineral Foundation Funds to Fight the Pandemic?

The Wire | Anandvardhan Yagnik |April 17, 2020

There was no reason to divert a special fund meant for people affected by mining unless the already existing state fiscal repositories had been exhausted and accounted for.

In wake of the unprecedented times and the COVID-19 pandemic, the Union finance minister, on March 26, while announcing several measures to combat the public health and the economic crisis in the nation, directed the states to use the District Mineral Foundation (DMF) funds to fight the pandemic.

The direction by the Centre to the states permitting the diversion of such special funds specifically meant for a targeted group of people who are affected by mining operations, again brings to fore the issues surrounding the legitimacy and propriety of such a move by the executive.

District Mineral Foundation (DMF) funds

In India, the mining industry is primarily regulated under the Mines and Minerals (Development and Regulation) Act, 1957. In the year 2015, by way of an amendment Act, the central legislation came to be amended bringing into effect far-reaching changes in the regulations governing the mining arena. One historical change was the creation of the District Mineral Foundation (DMFs). DMFs are essentially trusts to be set up in all the districts in every state affected by mining and are defined as institutions which will work ‘for the interest and benefit of persons and areas affected by mining-related operations’.

In our country, tribals, Adivasis and farmers have since long been known to bear the brunt of the adverse impacts of mining on their livelihoods which has resulted in degraded livelihoods and huge socio-economic, environmental and health hazards and costs. The realisation to contain such adversarial impact and rectify the historical injustice on these vulnerable group of people, led to the creation of DMF funds as a part of distributive justice and inclusive growth.

The DMF funds are collected at the district level and are essentially contributions from holders of mining leases. Pursuant to the 2015 amendment and creation of DMFs, the Union brought into effect the Pradhan Mantri Khanij Kshetra Kalyan Yojna (PMKKKY) in September 2015. The PMKKKY, inter alia, laid down the scheme qua the utilisation of the funds generated by the DMFs.

The DMFs generates fund by way of reserving 10% or 30%, as the case may be, of the royalty proceeds from the mining of minerals in the respective districts. From the total collections accrued under DMF, the mechanism provided envisages spending the same in the ratio of 60:40, 60% being for projects classified as high priority areas which include health care, education, sanitation, drinking water supply, women and child care, environment conservation, etc while the balance 40% being for projects classified as other priority areas which include construction of roads, railways, bridges etc.

Thus, in substance, the entire idea of creating a special fund like DMF is to provide for funds for the welfare of people affected by mining. With that background in mind, one has to look at the issue of how legitimate and proper is it that a special fund meant for a targeted group of people is diverted for purposes other than what it has been constituted for? More so, when there are other funds like the Prime Minister’s National Relief Fund, Chief Minister’s Relief Fund in respective states, the Contingency Fund, etc, available at the disposal of the state to meet with the pandemic.

Diversion of DMF Funds to fight the COVID-19 pandemic

Pursuant to the finance minister’s announcement directing the states to utilise the DMF Funds to fight against the pandemic, the Ministry of Mines issued a letter specifying that districts with at least one COVID-19 positive case could put to use the funds for medical equipment and infrastructure while in other cases the same could be put to use for procuring masks, sanitisers, for distribution of food to the marginal, etc. However, the amount of funds that can be utilised has been capped at 30% of the unused funds of DMFs. As per the data available on the website of Ministry of Mines, Government of India, as on January 2020, the total amount of unspent funds for all the district is around Rs 23,511 crores.

Hence 30% of the unspent funds would approximately translate to Rs 7053 crore. Talking about the state of Gujarat, as per the data available on the website of District Mineral Foundation, Government of Gujarat, which varies from the data available on MoM, as on March 2020, the total amount collected under DMF from 2016-17 to March 20-21 is Rs 9434 crore and the total amount of unspent funds is Rs 8775 crores and hence 30% of such unspent funds roughly translates into Rs 2632 crores which can be put to use to fight the pandemic.

No doubt, that the scheme provides for utilisation of DMF funds for high priority areas like healthcare and hence these could be put to use, more so in areas affected by mining because these are mainly rural and remote areas with no healthcare facilities and infrastructure and hence the local populace are more at risk of community transmission with even one positive case of COVID-19 in the area.

However, the same still does not justify the diversion of funds and making them available for use for emergency purposes – as in the present scenario – because that wasn’t the objective with which it was formed. It is a fund targeted with a specific purpose and for a specific group of people and region. Hence, mooting the whole idea for it being diverted to meet the emergency and giving directions qua the same without any participation and consent of the people for whom the fund has been created, in itself is an anomaly and deceiving of its objective.

However, the same is not unprecedented. With our form of governance, where, welfare, inclusive growth and distributive justice are best only terms of theoretical concepts, even previously special funds have been diverted for purposes other than which they had been constituted. The best example of this is that of the CAMPA funds. Like DMF funds, CAMPA funds too have been diverted for other flagship initiatives and policies and hence the Supreme Court has time and again pulled up the state governments for diverting the funds for purposes other than what they were meant for.

The funds from the social welfare schemes are for the benefit of the targeted population and not for the benefit of the government to shirk away its responsibility from providing basic amenities that it should as a state. Such people’s funds cannot be used in substitution of, for what state ought to incur expenditure from its own pocket. Otherwise, it defeats the whole purpose behind the creation of such funds.

With DMF funds, even after five years of its introduction, it still suffers dilatory implementation and sanctioning of projects overlooking needs of those affected, would now lose its very character if the diversion of funds is permitted to be carried on.

Diversion of special funds – legal?

The underlying premise behind the diversion is that the executive has always considered it to be its own fund. This needs to be dispelled. The DMF fund is a special fund which is meant for the welfare of the people affected by mining and is a people’s funds. However, this participative approach of the affected people or the targeted population for the welfare of whom the repository has been created have not been made part of the committees which look after the utilisation and implementation of DMF funds and hence their lies the genesis of the whole problem.

Each state frames its own rules with regard to the implementation of DMFs and pursuant to rules being notified, the committees have to be constituted. DMFs comprises of two committees, the composition of which is formulated by the state government.

One is the governing council and the other is the executive council. In Gujarat, the chairperson of the governing council is the prabhari mantri, who at present is MLA Bhupendrasinh Chudasama, while the chairperson of the executive council is the district collector of the respective district. These committees will determine which areas are mining-affected and thereafter allocate the fund, approve relevant projects and monitor their implementation.

However, the problem is the composition of the committees is such that it includes primarily bureaucrats and MLAs. There is no participation of people from the grassroots for whom the creation of the fund has been envisaged and hence from this undemocratic set up stems the superficial idea of it being government fund thereby leading to its diversion for purposes other than those specified.

To those who may ask that why should an emergent national interest when thousands of lives are required to be saved and protected, not be enough of a reason for diversion of DMF funds to meet with the national goal of containing the pandemic, the answer would be, that it is a structurally flawed understanding of fiscal responsibility of the state on their part.

Because, firstly, most districts have at their disposal, disaster relief funds, MPLADS funds granted to the member of parliament for the respective constituency, contributions from the funds granted to MLA for respective constituencies, etc. Apart from that, to meet with such emergent situations, there is the chief ministers relief fund for respective states, the contingency fund for respective states and the prime ministers relief fund. Moreover, even as the PM CARES Fund has been created which has received donations in high numbers takes care of the emergent national interest. So the legitimate question to be asked here is without having all these funds having been exhausted, why must the DMF Funds be used for fighting the COVID-19 pandemic?

Moreover, even otherwise, a special fund could have been diverted only upon completion of all developmental activities of a district. Prior to that, even an emergent situation does not justify its diversion. The special funds are to be utilised specifically for the purpose they have been created for and that can be ensured only when there is appropriate leadership at the district level and villagers, local populace, labourers working in mines, grassroots organisations, panchayats, etc. should be consulted and their participation be called for rather than thrusting all the decision making power in the hands of the political representatives and bureaucrats, because for them such special funds become an easy way out, to be used and diverted for all and other purposes and thereby abdicate their responsibility from providing for the same from the existing fiscal repositories of the state.

It is true that in times as unprecedented as now when we are faced with a pandemic, which calls for extraordinary measures to contain the coronavirus, all that can be done would be less, but that is no reason to divert a special fund meant for people affected by mining unless the already existing state fiscal repositories have been exhausted and accounted for because had that been the objective then special funds would stop to serve any purpose and every time the executive failed to perform its obligations and provide for what it ought to, then the best way out would be to casually divert the special funds.

The state of Odisha has expressed its willingness to use the DMF funds to fight COVID -19 and has rather requested the Centre to remove the cap of 30% usage of unspent funds. In spirit, as good as it may seem that a state is going out of its way to provide for its citizens but this could ensue a dangerous trend of diverting funds meant for welfare schemes for other purposes. However, at the same time, there are officials who discourage this trend.

Moreover, without any guidelines and accountability being in place, there is a higher risk of these funds being used for purposes that have nothing to do with mining-affected people and area. One of the factors which requires consideration is that there might be several projects which have been sanctioned for a district or area on the basis of the funds collected but since they have not been commenced the expenditure to be incurred might be lying with the trust. Hence overlooking the nitty gritties and without any law or guidelines in place to divert a portion of unspent funds could risk jeopardising several projects that may be in the pipeline.

Not only is the diversion of DMF funds illegitimate, improper, unjustifiable and a very unsustainable response of ruling dispensation’s for its failed governance but it has also rather increased the trust deficit of the farmers community and affected people who now fear that the DMF funds meant for their upliftment will be diverted by the government to meet its obligation which otherwise it should have from its own funds.

In Gujarat, several farmers affected by mining in Bhavnagar district have written to the state government and to the chairperson and members of the governing council and the executive council to not divert the DMF funds for any activities other than what has been envisaged under the PMKKY scheme and shall be utilized only for the targeted population for which it has been brought into existence.

Our history is replete with examples where special funds earmarked for special purpose have been diverted thereby time and again calling for legislative and judicial intervention to curb such diversions. However, the lesson has not been learnt and hence once again the step taken by the government runs the risk of becoming a dangerous precedent allowing ill-prepared authorities with a lack of foresight to use funds for specific functions as their personal kitties in the future and steps must be taken to avoid such occurrences.

Anandvardhan Yagnik is a practising lawyer at the Gujarat high court.

Tribal sub plans fail under Modi regime; Adivasis deprived of benefits in last five years

National Herald | Krishna Jha/IPA | April 16, 2019

Among the objectives of the Tribal Sub Plan has been to look after the basic needs of the tribals. The records show that the money was spent, but never to serve the needs of the targeted masses

Each of government plan has its own tragic story. One burning example is Tribal Sub Plan (TSP). Brain child of Planning Commission, it became Scheduled Tribe Component as the Planning Commission became NITI Ayog.  Read more

Govt Money Meant for Adivasi Development Is Being Used to Support Mining

The Wire | Sanjoy Basu, Neeraj Kumar and Shashi Shekhar | April 16, 2019

The tribal sub-plan fund is being siphoned off in ways that may prove highly dangerous for Adivasi communities.

The tribal sub-plan is a strategy recommended by the Planning Commission and opted by the government of India. It is a fund meant for tribal areas and communities affected by mining.

All ministries are required to contribute a specific part of their budget to the tribal sub-plan. During the last few years, the fund has received hundreds of crores of rupees. But where was the money spent? Read more

States to address tribal forest rights after Lok Sabha elections 2019

The New Indian Express | April 15, 2019

In an interim order on February 13, the Supreme Court had directed 21 states to evict 11.8 lakh illegal forest dwellers whose forest rights claims were rejected by state authorities.

NEW DELHI: After the states missed the 15-day deadline to submit data on the rejection of forest rights claims in March, the Ministry of Tribal Affairs has decided to collect phase-wise data, depending on when the Lok Sabha polls conclude in the states.

In an interim order on February 13, the Supreme Court had directed 21 states to evict 11.8 lakh illegal forest dwellers whose forest rights claims were rejected by state authorities. Later, the apex court stayed the order. Read more

1 5 6 7 8 9 30