Propuesta de lineamientos para el turismo científico en el Sumapaz

Over the years, States with Scheduled Areas have developed a framework around which the Governor’s reports are to be presented. According to the Scheduled Areas and Scheduled Tribes Commission Report (2002-2004), the Governor’s report is expected to contain an objective and independent assessment of the quality of the administration of Scheduled Areas, the implementation of protective safeguards for tribals, and the regulations made by the Governor in keeping with his powers under the Fifth Schedule.25 It should further cover issues of displacement and rehabilitation, law and order problem, tribal protests, atrocities against tribes, and so on. This report is required to be placed before the TAC for their advice and recommendations. On the basis of this Report, the Union Government may issue directives to the State Governments for better administration of these areas.

According to the Bhuria Commission Report (2002-2004), at the time of their writing, the States of Andhra Pradesh and Madhya Pradesh did not send their reports since

24 _{Debates of the Constituent Assembly of India, September 5, 1949, Available at}

http://164.100.47.132/LssNew/constituent/vol9p26.html

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1999-2000, while Maharashtra and Orissa had not sent theirs from 2000-2001 onward. Only Himachal Pradesh has submitted its report regularly. In more recent years, the Ministry of Tribal Affairs reports that, as of 25.5.2013, it had received Governor’s Reports for the year 2011-12 only from Gujarat and was still awaiting reports from the other eight States. Maharashtra had not submitted its report for the previous year 2010-11 either.

Even when the reports are sent regularly, there have been several questions raised regarding the quality and value of the reports. Critics have pointed out that the reports are repetitive, casually and haphazardly constructed and tend to borrow heavily from reports of the tribal welfare department, merely listing out the schemes and programmes for tribal development without even examining their implementation and efficacy on the ground. Pressing issues such as the impacts of insurgency and counter- insurgency on tribal populations and displacement by big industry rarely find mention. The Governor’s Reports offer quantitative rather than qualitative or analytical data about the status of tribal administration in the concerned States – even the statistical information presented relates to the flow of development funds to tribal villages and the number of beneficiaries of government welfare schemes. The reports do not offer an independent assessment of the policies of the State Governments vis- à-vis Scheduled Areas and instead seem to uncritically accept government claims of tremendous achievements with regard to tribal development.

A confidential report sent to the President by the National Commission for Scheduled Tribes (accessed by Down to Earth magazine in 2013) has also complained of the failure of Governors in performing their administrative duties to ensure self- governance in tribal 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 tribal rights.26

Most importantly, the Governor should ensure that all laws which contradict the constitutional protections for tribals should be repealed or modified in Scheduled Areas. The NCST further recommended that the Ministry of Tribal Affairs prepare a detailed format for submission of the Governor’s reports which could include a review of all Central and State laws and their compatibility with Constitutional provisions for Scheduled Tribes and consultation with the TACs. Other experts have also advocated the inclusion of an Action Taken Report (ATR) for the previous year in the report of the subsequent year. Where such regulations have been made, they primarily pertain to control of land alienation and money lending in tribal areas and do not venture to cover the spectrum of issues that may be covered under the “peace and good government” of the area. There are several instances in which the Governor has exercised his powers to make regulations. In Odisha, these regulations have included the Odisha Scheduled Areas Transfer of Immovable Property (By Scheduled

26 _{Jitendra, Governors in the Dock, Down to Earth, April 15, 2013, Available at}

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Tribes) Regulation 1956, Odisha Scheduled Area Money-Lenders Regulation 1967, and the Odisha Schedule Area Debt Relief Regulation. However, reviews of the implementation of these regulations (as well as similar laws seeking to stem land alienation and money-lending in tribal areas) points to their failure owing to excessive dependence on the powerful mainstream bureaucracy unwilling to acknowledge tribal rights over land and forest. More recently, the Bhuria Commission Report has further recommended the inclusion of another subject under which the Governor could exercise his powers – for the regulation of trade and commerce in the Scheduled Areas of the State.27

In April 2012, Union Minister for Tribal Affairs, Dr. V. Kishore Chandra Deo requested the Governor of Andhra Pradesh, Shri. E.S.L Narsimhan, to use his powers under the Fifth Schedule to cancel a Memorandum of Understanding (MoU) signed by the Government for bauxite mining in Fifth Schedule areas of Visakhapatnam district. It has also been noted that when Governors do exercise their Fifth Schedule powers, it is only on the advice of the Council of Ministers. Activists have complained that Governors never respond to petitions calling for their intervention in cases of land conflicts, acquisition for mineral extraction and police atrocities against tribal communities.

In order to assist the Governor in the fulfilment of the Constitutional duties of his/her office, the creation of a special Governor’s Cell to work specifically on issues pertaining to the Scheduled Tribes has begun in several States. The governments of Chhattisgarh, Jharkhand, Maharashtra and Rajasthan have informed the Ministry of Tribal Affairs that they have constituted the Governor’s Cell in their States, although the details of their functioning are not yet known. The Governor’s Office in Andhra Pradesh has noted that there is no need for such a cell in the State since the Tribal Welfare department is capable of performing the same duties. The State of Madhya Pradesh has informed the Ministry that there was no consensus on the creation of such a cell. According to the Government of Himachal Pradesh, such a cell has already been formed in their State.

The proposed composition as per the directives of the Ministry of Tribal Affairs in a letter to states with Scheduled Areas (dated December 8, 2010) is as follows:

1. Secretary (Head)

2. Deputy Secretary’s Level Officer (one Anthropology subject expert) 3. One Law and Constitution expert of Deputy Secretary rank

4. Deputy Director (anthropology subject expert)

5. Research Officer/Section Officer (one) (Research Officer should be subject expert in Anthropology/Sociology)

6. Two Assistants/Technical Assistants/Legal Assistants 7. Other supporting staff – data entry operator.

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The formation of the Governor’s Cell is a longstanding necessity in order for the Governor to properly carry out the duties of the post vis-à-vis protection of the tribes. It is imperative that the Cell be set up in all the Fifth Schedule States and that these Cells function independently and conscientiously. Most importantly, the Cell should be prevented from becoming simply another bureaucratic institution among many performing its tasks mechanically with little autonomy or interest in tribal affairs.