Constitutional Dilemma and Historical Injustice to Tribals

by B.K. Manish

Before the Supreme Court goes for its summer break, it faces a huge dilemma. An appeal challenging the order of the Chhattisgarh High Court in a tribal rights matter is coming up for hearing. In March, the HC dismissed on merit a PIL regarding alleged unconstitutional functioning of the Tribes Advisory Council, a crucial part of the Fifth Schedule mechanism. While the HC praised the effort of the petitioner, it, strangely, overturned a progressive line on the Governor’s discretionary powers the Supreme Court had evolved in the last sixteen years to revert to an older fundamentalist position of the SC. If the HC order is upheld then the supremacy of the SC and the doctrine of progressive interpretation would suffer. But even to set aside the HC order, the SC would have to form a seven-plus judge bench because three judgments of the Constitution Benches would need to be overturned.

 This matter relates to the Fifth Schedule of the Constitution of India, which was appended to safeguard the interests of tribals by way of providing an alternate governance mechanism. The Fifth Schedule remained a false promise. Retired bureaucrats and activists allege that the Governor, who is the lynchpin of the Fifth Schedule, almost never takes the initiative. The petitioner gave it a new twist by highlighting the fact that State governments have usurped the Governor’s Tribes Advisory Councils. The Constitution mandates the Governor to make the business rules for the TAC but the State governments made their own rules and installed the Chief Minister as its chairperson. This effectively killed all hopes for a remedial or alternate governance mechanism in the Scheduled areas. The petitioner pointed out in his PIL that these rules of the TAC are unconstitutional as they run contrary to the provisions of the Fifth Schedule. The State Government is deciding the agenda of the TAC meetings and taking executive decisions therein despite para 4(2) of the Fifth Schedule clearly stipulating that the TAC
would ‘advise’ on matters ‘referred to it by the Governor’.

The High Court itself framed the question of law on the feature of the Governor’s discretionary powers. That is, whether the TAC Rules should have been made by the Governor in his discretion or if it is alright that the State Government made it in his name. In deciding this matter the HC got swayed by the 1974 ruling of the SC in the case of Shamsher Singh versus the State of Punjab. It is considered as one of the most iron-clad rulings of the SC due to the heavy-duty, separate opinion of the fathers of the PIL movement, Justices V.R. Krishna Iyer and P.N. Bhagwati, cementing elaborately the five-judge opinion expressed by the then Chief Justice A.N. Ray. In this separate opinion the erudite judges dwelt at length on the evergreen debate on the Presidential versus Cabinet system of governance. By overruling the ratio in the Sardari Lal case, which had granted to the President discretionary powers in relation to the removal of civil servants, it set a powerful example. Further, it told the legal community not to deviate from the established line of rulings in cases like Raisaheb Ramjawaya Kapoor versus the State of Punjab and Sanjeevi Naidu A. versus the State of Madras.

Everytime the higher judiciary felt the need of checks and balances within the executive framework, the ruling in Shamsher Singh appeared like a dead-end. A dirt-track was beaten around this mountain in the 1997 Bhuri Nath case where it was held that the functions of the Governor under the Fifth Schedule are free from the aid and advice of the Council of Ministers. Issues of tribals’ plight and blindness to corruption by ministerial colleagues stirred the SC to deepen this dirt-track. Bhuri Nath, Samatha and MP Special Police establishment rulings of 2, 3 and 5-judge benches of the SC have thus created a 16-year old consistent line on the discretionary powers of the Governor.

The progressive line taken by the SC did not really overrule any particular order of the fundamentalist line, simply found smart ways to get around it. An exception is the sharp contrast in a point in the Sanjeevi Naidu case and the MP Lokayukta case. The earlier one held that where an article of the Constitution does not specifically mentions discretion for the Governor, that cannot be inferred by implication. The latter relied on the wording of Article 163(2) of the Constitution which grants the Governor ultimate power to decide whether a matter belongs to his discretion or not, to hold that there are bound to be instances where the Governor exercises discretion even though it is not spelt out as such in the particular article.

The Chhattisgarh High Court was also swayed by the submission of the Assistant Solicitor General who stated on behalf of the Union of India that the Governor has no discretionary powers under the Fifth Schedule. Interestingly, this submission is diametrically opposite to the official opinion of the Attorney General, forwarded to many Governors by P. Chidambaram in May 2010. By refusing to pay heed to this written opinion of the AG and to the reference of the Bhuri Nath judgment which is part of the petitioner’s written rejoinder, the High Court virtually took upon itself to correct the SC practice of the doctrine of progressive interpretation.

Senior journalists like B.G. Verghese and Gautam Navlakha aver that the petitioner has posed the question very conveniently to the judiciary. The Chhattisgarh High Court order, through its propriety tangle, has further forced the hands of the SC which must deal with the question head-on. Since the Fifth Schedule does not mention the Governor’s discretion in as many words, it is almost democratically inoperable. It amounts to a constitutional fraud, activists allege. In a way the petitioner has quantified what has so far been vaguely referred to as the ‘historical injustice to tribals’.

B.K. Manish versus State of Chhattisgarh, WP (PIL) 23/2012. Bhuri Nath versus State of J&K-(1997) 2 SCC 745, para 25. Shamsher Singh versus State of Punjab-AIR 1974 SC 2192, (1974) 2 SCC 831, pg. 865-6. Sanjeevi Naidu A. versus State of Madras-1970 3SCR 505. Raisaheb Ramjawaya Kapoor versus State of Punjab-1955 1SCR 577, pg. 587. Sardari Lal versus Union of India-1971 3SCR 461. M.P. Special Police Establishment versus State of M.P.-(2004) 8 SCC 788.

An independent communicator and tribal rights activist from Chhattisgarh, the author can be reached at cgtribal@yahoo.in