Jharkhand governor Ramesh Bais has described the constitution of the Tribes Advisory Council (TAC) by the state government without consulting Raj Bhawan as an encroachment into his rights and powers enshrined in the Fifth Schedule of Constitution, according to a 13-page noting on the file regarding constitution of the council.
On June 4, 2021, the Hemant Soren led JMM-government notified ‘Jharkhand Tribes Advisory Council Rules, 2021’ which amended the rules for constituting TAC, an advisory body on issues related to tribes and their development in areas mentioned in the Fifth Schedule of the Constitution. Thirteen of the 24 districts of the state are classified as so-called 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 TAC with the chief minister as ex-officio chairman and the state tribal affairs minister as the deputy chairperson; 15 MLAs, including three from the opposition BJP are also a part of TAC, besides three experts from scheduled tribes.
Governor Ramesh Bais, who took over from his predecessor Draupadi Murmu on July 14 last year sought the related file. Officials aware of the development said after taking legal opinion, the Governor 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 his predecessor Draupadi Murmu on July 14 last year sought the related file. Officials aware of the development said after taking legal opinion, the Governor returned the file around two weeks back with a detailed 13-page observation along with suggestions for action in future.
{{/usCountry}}Bias is the fifth governor of a non-BJP ruled state to raise propriety issue with the state government. Governors of West Bengal, Tamil Nadu, Kerala, Maharashtra and Telangana have been in confrontation with the state governments over a range of issues. To be sure, in this case, the governor just have a right to feel peeved — the appointment of TAC’s was previously the Governor’s prerogative.
In the detailed observation, a copy of which has been reviewed by HT, the Governor has cited legal opinions from several legal experts including the country’s top law officer, Attorney General 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: allowing him to appoint two members from scheduled tribes the council; suggestions given by Governor must receive highest consideration by council; to send all decisions taken by TAC to the governor’s office for approval; and priority be given to for welfare and advancement of tribes.
“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,” read the observation.
State government officials confirmed that they have received the Governor’s noting and added that no decision has been taken on his suggestions.
Both chief secretary Sukhdev Singh and principal secretary to the chief minister, Vinay Chowbey, refused to comment over the issue. However, a top official who asked not to be named said the ”file has been put up before the chief minister for his perusal”.
“Fifth Schedule is a special provision in the Constitution and the governor has been granted discretionary powers in regards to it. Under Article 166 and 162 of the Constitution, all executive decisions taken by the government are done in the name of Governor. However, in all such matters the governor is bound by the aid and advice of the council of ministers. But in case of the Fifth Schedule, the Constitution grants discretionary power to governor and primacy should be given to it,” said Ajit Kumar, former advocate general, Jharkhand.