Assistant solicitor general's affidavit says the constitutional head of state has no discretionary powers over functioning of Tribes Advisory Council, headed by chief minister
The Centre seems to have reversed its stand on the powers of a governor over administering tribal areas in a state. Earlier, the attorney general of India had given an opinion to the home ministry, in response to a reference, that governors do have discretionary powers, but an assistant solicitor general has said exactly the opposite. Fauzia Mirza has said that the governor has no discretionary powers under the Fifth Schedule of the Constitution of India in a submission filed in the Chhattisgarh High Court on behalf of the Centre. The Fifth Schedule is rooted in Article 244 (1) and deals with administration and control of Scheduled Areas and Scheduled Tribes.
Mirza filed the submission in February end in connection with an ongoing case that has virtually challenged the Fifth Schedule and validity of the Tribes Advisory Council (TAC). “The governor has granted powers to the chairpersons as per the rules of TAC,” the assistant solicitor general stated. “It cannot be said that these rules have been formulated to exercise the governor’s discretionary powers. While framing these rules, the power of governor has been exercised as the Constitutional head of the state acting with the aid and advice of the council of ministers and not in his discretion,” the document says.
The statement contradicts the opinion expressed by attorney general G E Vahanvati on April 21, 2010. Vahanvati, in his opinion on the nature of powers of the governor under the Fifth Schedule, had stated that the governor does have discretionary powers and had based his opinion on nine judgements of the Supreme Court and other references.
The division bench of Chief Justice Yatindra Singh and Justice Pritinkar Diwakar granted two weeks to the advocate general to file a reply. The next hearing is on March 12.
Fifth Schedule and its implementation in practice
The public interest petition filed last year in the Chhattisgarh High Court virtually questions the Fifth Schedule. The petition says it was impractical to implement the Fifth Schedule in its present form because of its flawed nature. While it was the root cause of the tribals’ plight, the functioning of TAC is also questionable, it said. According to the petitioner, if governors exercise their near extra-constitutional powers, they would be in direct confrontation with state executive heads.
According to the petition, paragraph 4(2) of the Fifth Schedule stipulates that TAC should hold deliberations in such a manner that the governor refers to them. “In reality, the chief minister, who is also the chairperson of TAC, decides the agenda and seizes sole control over functioning of the body without taking any reference from the governor,” the petition states.
“Governors never exercise their power entrusted in the Fifth Schedule,” says B K Manish, the petitioner who is a tribal rights activist. He cited two recent incidents—Nagari movement of Jharkhand and illegal detention of thousands of tribals in the name of Maoist movement in Chhattisgarh. In Nagari, adivasis approached the governor to annul a project to establish a centre of the Indian Institute of Management by forcible acquisition of fertile land. The governor ignored their demand. In Chhattisgarh, the governor turned a deaf ear to tribals’ appeals to annul the draconian Chhattisgarh Special Public Security Act.
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