Governors' Role and Tribal Areas

The institution of the governor has been sidelined in the administering of tribal areas despite clear constitutional guidelines to the contrary. At least apropos this issue, it begs the question whether the institution is relevant to Indian democracy, but for a start, the empowerment of the role of governor is a must.

Sonum Gayatri Malhotra (sonummalhotra@ gmail.com) is associated with the Centre for Policy Research, New Delhi.

In recent weeks, many have claimed that India’s system of state governors should be abandoned. Defenders of the office suggest that governors are important, primarily through their broad constitutional duties. But getting rid of this important position – or even reducing it to a purely ceremonial position – would be a serious mistake.
The new Bharatiya Janata Party-led government has replaced many governors from their office as they were appointed by its predecessor, the United Progressive Alliance, by pressurising them to resign before their terms ended. This belligerent move by the government illustrates as to how the gubernatorial office has been viewed as an agent of the centre.
This could be seen as consistent with the views of India’s first prime minister Jawaharlal Nehru, who himself was quite clear that an individual appointed as governor must also be acceptable to the government of the province. On the other hand, Nehru also envisioned that governors would contribute immensely to the province, as evidenced by his emphasis that they should have a background outside of politics and should be among eminent personalities from all walks of life. But in all these many years since Independence, we have only seen former bureaucrats, judges and politicians becoming governors. Furthermore, the role of India’s state governors hardly seems a worthy topic of concern other than its partisan attributes. Governors have been appointed neither based on qualifications and past achievements, nor are judged on accomplishments even when they’re at the helm.
One of the most important roles amongst other duties is their function in administering tribal areas. The governors are vested with clear and unambiguous powers in the Fifth Schedule Areas for safeguarding tribal interests in the nine states to which the schedule applies. The governors’ role in the protection of scheduled tribes was spelt out in the Government of India Act 1935; tribal lands were then categorised as excluded and partially-excluded areas for the “the aboriginals and the backward people”. This meant that legislation would not extend to tribal areas, except on the direction of the governor. Post Independence, the Constitution- makers reversed that role and set forth the Fifth Schedule of the Constitution. This permitted all legislation to apply to Fifth Schedule Areas unless the governor deems it inapplicable for tribal communities. The governor has authority to revoke an enactment at his sole discretion or after taking aid and advice from the Tribal Advisory Council (TAC).
The nation’s tribal population comprises the largest in the world, consisting of about a hundred million people. It is the governor who is accountable for good governance apropos these communities. However, this has historically been a neglected role of the governor: in actual fact, in many cases, governors have not delivered and tribal policy is determined by political or other vested interests. This is evident in letters that were sent from the centre to the governor of Andhra Pradesh, E S L Narasimhan in 2012 advising him to intervene and stop bauxite mining in tribal areas. The governor took cover under the chief minister’s decision rather than revoking the measures. Another example would be the case of Niyamgiri Hills vs Vedanta (2013) where it was the Supreme Court intervening to empower tribal communities under the Panchayats (Extension to Scheduled Areas) (PESA) Act.
Although, if we literally spell this out: should tribals rely on the benevolence of one individual in a state to protect their right, culture and land? Some scholars while discussing the Fifth Schedule characterised the governors’ role as neither democratically accountable nor normatively viable within our parliamentary institutions. Vesting authority in one single person, who is not democratically elected, to unilaterally modify laws that shall apply to the union, simply cannot offer a panacea. Why should one person be responsible for the lives of a hundred million people in the country, runs the argument.
The ongoing case of B K Manish vs The State of Chhattisgarh challenges the governor’s discretionary powers over scheduled areas. The state high court disregarded the governor’s discretionary powers and bound him to act as governor-in-council on the aid and advice of his cabinet. The state high court’s judgment has been referred to the apex court, which is yet to give a verdict.
It should be noted that the state high court’s recent judgment is completely opposite to the Bhuri Nath vs State of Jammu and Kashmir (1997) and Samatha vs State of Andhra Pradesh cases. The two landmark judgments categorically accredit discretionary powers to the governor under the Fifth Schedule provision, and recognise that under the Constitution, the governor can act independently of the TAC under powers conferred on him.
But the chief minister rather than the governor now heads the TAC in Chhattisgarh. Therefore, the outcome of the B K Manish case could by default make the chief minister solely in charge of the extension of laws to scheduled areas. This sidelining of the governor’s explicit role under the Fifth Schedule is indicative of a failure of our constitutional machinery. It represents an overthrow of constitutional provisions as well as a threat towards the integrity both of the administration of tribal areas and of the role of the governor.
Redundancy of the Institution?
Our parliamentary democracy has thus far been inconsistent and unclear regarding the role of the governor and the discontinuation of the institution is sometimes mooted as a way forward. Certainly, we can agree that governors have been devalued and reduced to a mere symbol. On the one hand, the centre has undermined the governor’s role by restricting autonomy and shaping the institution as centre’s pet. On the other, chief ministers of states have constrained governors by taking over their governing domain.
Therefore, an alternative model constructed with precise objectives and a clear mandate for the governor could be useful to implement. Even though the TACs comprises tribal representations, many decisions continue to showcase the opposite in terms of tribal interest or outcomes. Having said that, it is the governor who should be placed as the chairman of the committee, empowering and reinstalling constitutional roles to safeguard tribal interest. The annual reports sent to the president on tribal development by the governors of each state should be taken seriously and made available to the public domain. The governors should directly focus on strengthening local institutions such as panchayati raj and joint forest management as it empowers people at the lowest level.
The Fifth Schedule was designed around the institution of governors. It could well be true that a workable role for governors might improve the condition of tribal communities. Scheduled tribes have been neglected and their voices obscured. Empowering them would be enabling the provision and adhering to constitutional mechanisms.
The governors’ political ideology cannot be shaped to be pedantic, but the selection mechanism for the post can be strengthened to determine individuals capable of viably administering these responsibilities. Such a role can start if only the ongoing case in the Supreme Court is decided in favour of a broader role for governors.