State response to Supreme Court ignores more recent apex court judgements and former attorney general's opinion on powers of governors under the Fifth Schedule of the Constitution
For about a year now, Chhattisgarh has maintained silence over the Supreme Court notice it received on a petition challenging the alleged unconstitutional functioning of its Tribes Advisory Council, an empowered body for safeguarding interests of Schedules Tribes (STs) under Fifth Schedule of the Constitution. The special leave petition in the apex court, filed by activist B K Manish, states that usurping of TACs are largely responsible for the woes of tribal people in the country.
After lapse of an year, the Chhattisgarh government has filed a response in the apex court, claiming parliamentary democracy does not give discretionary power to its governors. Citing some earlier judgements of the Supreme Court, the state claimed that the governor has no discretionary power but has to depend on the aid and advice of the council of ministers in matters of functioning of TAC.
The state has also claimed in its response that the matter is no more an issue because it has already been settled in a number of Supreme Court judgements.
“….the substantial question of law which has been raised in this SLP is no longer res integra and it has been settled by several Constitution bench judgements since the judgement rendered in Ramjawaya Kapoor’s case and further approved and clarified in Shamsher Singh’s case. The petitioner herein seeks to question even the judgment rendered by seven judge’s bench of this Hon'ble court in Shamsher Singh’s case and it would evident from page D of the SLP,” states the preliminary response filed recently.
What the affidavit failed to mention is that page D of the SLP also states that a couple of the judgements in recent past had overruled the judgement cited by the Chhattisgarh government.
The Chhattisgarh government has cited Ramjawaya Kapoor judgement (1955) and Shamsher Singh judgement of 1974 whereas petitioner cited Bhuri Nath judgement of 1997, Samatha judgement 1997 and MP Lokayukta judgement of 2004.
The three judge bench will next hear the case on July 30.
The SLP was filed in the apex court in March last year, after the Chhattisgarh High Court dismissed the public interest petition. The high court had accepted the contention of the Chhattisgarh government that governors do not have discretionary powers in Fifth Scheduled areas and that they are bound by aid and advice of council of ministers of the state government.
The submission of the state government contradicted the opinion expressed by former Attorney General of India, who had said the governor does have discretionary powers under the Fifth Schedule of the Constitution of India. Then Attorney General G E Vahanvati gave this opinion on April 21, 2010, based on nine judgements of the Supreme Court; he cited other references as well.
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