RANCHI: Jharkhand governor Ramesh Bais has described the state government’s constitution of the Tribes Advisory Council (TAC) without consulting Raj Bhawan as an encroachment into his rights and powers enshrined in the fifth schedule of the Constitution, according to a 13-page noting on its file.
The fifth schedule deals with the administration and control of scheduled areas as well as of scheduled tribes residing in any state other than Assam, Meghalaya, Tripura and Mizoram.
On June 4, 2021, Hemant Soren-led state government notified ‘Jharkhand Tribes Advisory Council Rules, 2021’ which amended the rules for constituting the TAC---an advisory body that deliberates and helps the government about issues related to tribes and their development in scheduled areas mentioned in the Fifth Schedule of the Constitution. 13 of the 24 districts of the state are classified as scheduled areas.
The notification transferred the power of constituting TAC from the office of the governor to the chief minister. Accordingly, the state government on June 22, 2021, reconstituted the TAC with the chief minister as ex-officio chairman and the state tribal affairs minister as the deputy chairperson. 15 MLAs, including 3 from the opposition BJP are also a part of TAC, besides 3experts from the scheduled tribes (ST) community.
Governor Ramesh Bais, who took over from her predecessor Draupadi Murmu on July 14, had sought the related file. Officials aware of the development said the governor, after taking legal opinion, returned the file around two weeks back with a detailed 13-page observation along with suggestions for action in future.
{{/usCountry}}Governor Ramesh Bais, who took over from her predecessor Draupadi Murmu on July 14, had sought the related file. Officials aware of the development said the governor, after taking legal opinion, returned the file around two weeks back with a detailed 13-page observation along with suggestions for action in future.
{{/usCountry}}In the detailed observation, a copy of which is in possession of HT, the governor has cited legal opinions sought from several legal experts including country’s attorney general (AG) KK Venugopal and constitutional provisions to argue that the governor has discretionary powers in matters under the fifth schedule.
Though the governor has stopped short of terming the notification as ‘void’, he has made four suggestions including to allow his office to appoint two members from ST community to the council and send all decisions taken by TAC to the governor’s office for approval.
“Aforesaid rules were notified by the State government without any prior intimation/concurrence and/or consideration or even consultation with the office of the Governor as was mandated under the Rules of Executive Business, 2000. The state government did not even take prior consent of the then governor in the matter, leave alone taking her approval, even for formality’s sake. Such an act by the state government was not only against the very spirit of the Fifth Schedule of the constitution but also amounted to encroachment on the rights and powers of the governor enshrined in the fifth schedule,” reads the observation.
The Raj Bhawan has argued that considering the opinion and facts (legal and others), it was of the opinion that ‘the governor, in performance and functions and exercise of powers under the Fifth Schedule, is not bound by the aid and advice of the Council of Ministers of state and the governor has discretionary powers under the Fifth Schedule regarding administration and control of the Scheduled Areas and Scheduled Tribes’.
Going forward, Raj Bhawan suggested to ‘must consider’ 4 suggestions ‘in the interest of scheduled tribes and better administration of scheduled areas’.
“...the power to appoint /nominate at least two members, representing scheduled tribes community, to the council, should rest with the Governor. As and when any suggestion /advice given by the Governor to the council, the same must achieve highest serious consideration by the council,” the noting reads.
The governor has also suggested that every decision taken by the TAC must invariably be sent to his office for consideration and approval. “If the governor proposes/suggests some changes/amendments therein, those must not only be given due consideration and looked into with utmost seriousness but at the same time accepted too,” it said.
The officials confirmed that they have received the governor’s noting and added that no decision has been taken on his suggestions. However, none of them were willing to speak on record on the issue considering its political implications.
Both chief secretary Sukhdev Singh and principal secretary to the chief minister, Vinay Chowbey, refused to comment over the issue. However, a top official said the ‘file has been put up before the chief minister for his perusal’.
Bias is the fifth governor of a non-BJP ruled state to raise propriety issue with the state government. The governors of West Bengal, Tamil Nadu, Kerala, Maharashtra and Telangana have been in confrontation with the respective state governments over a range of issues.