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Centre flip-flops on Guv’s powers under Schedule V

In a move that may have its impact on the governance of scheduled areas and Centre-State relations,the Centre Monday informed the Bilaspur High Court

Written by Ashutosh Bhardwaj | Raipur |
February 26, 2013 3:26:15 am

In a move that may have its impact on the governance of scheduled areas and Centre-State relations,the Centre Monday informed the Bilaspur High Court that the Governor has “no discretionary powers” over the formulation of rules,laws and general administration under the Fifth Schedule of the Constitution. The Schedule deals with the administration and control of tribal areas.

The submission was filed by Additional Solicitor General Fouzia Mirza after the HC sought the Centre’s stand. However,the response contradicts earlier SC judgments on the issue.

Attorney General G E Vahanvati had submitted earlier that the Governor’s powers under the Fifth Schedule are “discretionary”.

The court is hearing a petition by Chhattisgarh-based activist B K Manish. He has argued that Tribal Advisory Rules,2006,formed under the Fifth Schedule by the state government violate the Constitution.

He said the Tribal Advisory Councils formed under the rules gave arbitrary powers to the chief minister whereas the Constitution mandates that the governor exercise his discretionary powers under the Fifth Schedule.

The Centre has rejected this contention. “It cannot be said that these rules have been formulated in exercise of his discretionary powers. While framing these rules,the power of the 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,” ASJ Mirza stated.

The matter has been raised earlier before the courts. In Bhuri Nath vs State of J&K,the Supreme Court had overruled an earlier judgment and held that the powers exercised by the governor under the Fifth Schedule are discretionary and while doing so the governor does not act on the advice of the council of ministers.

In fact,Centre had also asked Vahanvati to give his advice on governor’s powers under the Fifth Schedule.

“The power exercisable by the governor especially under the Fifth Schedule are discretionary powers,” he had said in his April 2010 submission.

Vahanvati had quoted Clause 3 of the Schedule that mandates the governor to annually send a report to the Centre on administration of the scheduled areas.

“This report is his personal assessment of the administration of the scheduled areas in the state,” the Attorney General had said.

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