CONSTITUTIONAL DILEMMA AND HISTORICAL INJUSTICE TO TRIBALS Supreme Court faces a huge dilemma soon after it returns from

summer break. An appeal challenging the order of Chhattisgarh High Court in a Tribal Rights matter is coming up for hearing. In March, HC dismissed on merit a PIL regarding alleged unconstitutional functioning of Tribes Advisory Council, a crucial part of Fifth Schedule mechanism. While HC praised the effort of petitioner, it strangely overturned a progressive line on Governors discretionary powers Supreme Court evolved in last sixteen years, to revert to an older fundamentalist position of SC. If the HC order is upheld then supremacy of 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 constitution benches would need to be overturned. This matter relates to Fifth Schedule of Constitution of India, which was appended to safeguard the interests of tribes by way of providing an alternate governance mechanism. Fifth Schedule remained a false promise. Retired Bureaucrats and activists allege that Governor who is the lynchpin of Fifth Schedule almost never takes the initiative. Petitioner gave it a new twist by highlighting the fact that state governments have usurped Governors Tribes Advisory Councils. Constitution mandates Governor to make the business rules for TAC but the state governments made their own rules and installed Chief Minister as its chairperson. This effectively killed all hopes for a remedial or alternate governance mechanism in scheduled areas. Petitioner pointed out in his PIL that these rules of TAC are unconstitutional as they run contrary to provisions of Fifth Schedule. State government is deciding the agenda of TAC meetings and taking executive decisions therein despite para 4(2) of Fifth Schedule clearly stipulating that TAC would advise on matters referred to it by the Governor. High Court itself framed the question of law on the feature of Governors discretionary powers. That is, if the TAC Rules should have been made by the Governor in his discretion or it is alright that state government made it in his name. In deciding this matter the HC got swayed by 1974 ruling of SC in case of Shamsher Singh Versus State of Punjab. It is considered as one of the most iron-clad rulings of SC due to heavy-duty, separate opinion from fathers of PIL movement justices V.R. Krishna Iyer & P. N. Bhagwati cementing elaborately the 5-judge opinion expressed by the then Chief Justice A.N. Ray. In this separate opinion erudite judges dwelt at length on the evergreen debate on Presidential versus Cabinet system of governance. By overruling the ratio in Sardari Lal case which had granted to President discretionary powers in relation to removal of civil servants, it set a powerful example. Further, it preached to legal community not to deviate from the established line of rulings derived from cases like Raisaheb Ramjawaya Kapoor Versus State of Punjab and, Sanjeevi Naidu A. Versus State of Madras. Everytime higher judiciary felt the need of checks & balances within executive framework the ruling in Shamsher Singh case appeared like a dead-end. A dirt track was beaten around this mountain in the 1997 Bhuri Nath case where it was held that functions of Governor under Fifth Schedule are free from the aid and advice of 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 & MP Special Police Establishment rulings of 2, 3 & 5-judge benches of SC have thus created a 16-year old consistent line on the discretionary powers of Governor. The progressive line taken by 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 Sanjeevi Naidu case and the MP Lokayukta case. The earlier one held that where an article of constitution does not specifically mentions discretion for Governor it cannot be inferred by implication. Latter one

relied on the wording of article 163(2) of constitution which grants Governor ultimate power to decide whether a matter belongs to his discretion or not, to hold that there are bound to be instances where Governor exercises discretion even though it is not spelt out as such in the particular article. Chhattisgarh High Court was also swayed by the submission of assistant solicitor general who stated on behalf of Union of India that Governor has no discretionary powers under Fifth Schedule. Interestingly, this submission is diametrically opposite to the official opinion of Attorney General, forwarded to many Governors by P. Chidambaram in May 2010. By refusing to pay heed to this written opinion of AG and to the reference of Bhuri Nath judgment which is part of petitioners written rejoinder, High Court virtually took upon itself to correct the SC practice of doctrine of progressive interpretation. Senior journalists like BG Verghese and Gautam Navlakha aver that Petitioner has posed the question very inconveniently to the judiciary. Chhattisgarh High Court order through its propriety tangle has further forced the hands of SC which must deal with the question head-on. Opponents of tribal autonomy who claimed that since Fifth Schedule does not mention Governors discretion in as many words, it is almost democratically inoperable find themselves in a bind now. In the unlikely event of the apex court debunking its recent progressive line to concur with Chhattisgarh High Court and to read the words of KM Munshi and Ambedkar literally, it would amount to buttressing the whispered allegations that constitutional itself was a fraud with the tribal folk. In a way petitioner has quantified what has so far been vaguely referred to as historical injustice to tribes.
B K Manish Vs. State of Chhattisgarh, WP (PIL) 23/2012.* Bhuri Nath Vs. State of J&K- (1997) 2 SCC 745, para 25. Shamsher Singh Vs. State of Punjab- AIR 1974 SC 2192, (1974) 2 SCC 831, Pg. 865-6. Sanjeevi Naidu A. Vs. State of Mdras- 1970 3SCR 505. Raisaheb Ramjawaya Kapoor Vs. State of Punjab- 1955 1SCR 577, Pg. 587. Sardari Lal Vs. Union Of India- 1971 3SCR 461. M.P. Special Police Establishment Vs. State of M.P.- (2004) 8 SCC 788. First Draft of this article appeared in Mainstream weekly, April 20. **For more details, check CGNet.in or Frontline, April 20-May 3, Illusory Rights.

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Cell# 97130 70013, Email: mannubhoy@gmail.com

BK Manish

KOYAWES TADNET
Bastar Study Tour, May 25- June 15

Calling All Activists-Scholars with interest in Tribal Rights, Ecology, Conflict ResolutionPeace, Development Studies or Anthropology to join in the unique Bastar Study Tour.
*************** Tour will start in Pakhanjur (Kanker) and move downwards along the south-western border of Chhattisgarh, to Konta (Sukma). Jagargunda onwards the troupe will travel off-roads. **************** As part of facilitation program for 'Indigenous People's Vision Document on Ethos, Education & Livelihood ' a joint study tour is proposed so that voices can be heard from those in the tribal community who are on the other side of the divide caused by modern education, religion & industrial development. For, it is also an obligation of the academia to clear the cobwebs of conflicting ideologies & vested interests that often try to smother the voices of the last man and then claim spokesmanship. This tour is also an assertion of anthrophiles' rights to walk and mingle unhindered in the ancient tribal habitations. both the police and rebels must respect this. Proposed Study Tour will give the partaking activist/scholar an opportunity to visit famous-for-wrong-reasons Dandakaranya without any mental baggage for unadulterated observations that might later form basis of a more informed-sensitive study or campaign. A yatra beginning without any agenda, charter of demands, petition or questionnaire; but with the willingness to listen, observe and learn; and fill in the blanks with authentic information on demand. Timing of Bastar Study Tour is set purposely at the peak of summer since there's no better time to understand the hardships of tribal life. Thus, observations made at this time help improve a great deal the accuracy-efficacy of any study plan or policy intervention later on. A coordination counter is being set-up in Raipur to address general queries as also to help avail any area specific data in support of research proposal. Partaking individuals would have to foot their own bill for various expenses on the tour. Organisers are collecting no compulsory fees but individuals are encouraged to pool in resources for coordinated efficiency & ease For queries, suggestions, contributions, find the contact details below. ------------------------------

Coordination Counter: Care of Prayas, 395 Baijnathpara, P.O.+ Dist.- Raipur. Chhattisgarh. Pin-492001 Tel: +91- 97130 70013, 94252 10113. Email: cgtribal@yahoo.in Outstation Coordinators: Delhi- _________________________________________________, Mumbai___________________________, Hyderabad- ________________________, Bangalore- _____________________________, Bhopal-