Role of Governor under 5th Schedule of the Constitution of India

In the constitutional design, just as the President is the head of the Executive at the Centre, the Governor is the head of state executive in a State government. He is appointed by the Central government, and under Article 163 of the Constitution, ordinarily the Governor is bound to exercise his/her powers with the ‘aid and advice’ of the Council of Ministers, i.e. the Cabinet of the elected State government. However, while exercising powers under the Fifth Schedule, there is considerable debate as well as litigation on whether or not the powers conferred upon the Governor by the Fifth Schedule can be exercised without explicit sanction from the State government, and whether he is, in fact, bound by the advice of the Central Government. It has been argued that the Governor, while exercising his powers under the Fifth Schedule, is not bound by the aid and advice of the Council of Ministers and must exercise the function independently. This position has received affirmation from the Courts as well.[1]

Paragraph 5(1), which lies at the heart of the Fifth Schedule, gives the Governor the power to restrict the application of any Central or State legislation to the Scheduled Area, either completely, or subject to exceptions and modifications. It has been held by the Supreme Court that the power to make exceptions and modifications includes the power to amend these laws.[2] Be that as it may, the laws made under paragraph 5 by the Governor require prior consultation with the TAC, and the assent of the President is necessary for them to be brought into force.

In large part, the Governors have failed to use their powers. As an official committee found: “The Governors, on their part, remained oblivious about the state of the tribal people. Even the mandatory annual Reports by the Governors to the President regarding the administration of Scheduled Areas under Para 3 of the Fifth Schedule are irregular. They comprise largely stale narrative of departmental programmes without even an allusion to the crucial issues in administration, the main thrust of the Fifth Schedule.”[3]

GOVERNOR’S REPORT

Para 3 of the Fifth Schedule to the Constitution lays down that “the Governor of each State having Scheduled Areas therein shall annually, or whenever so required by the President, make a report to the president regarding the administration of the Scheduled Areas in that State and the executive power of the union shall extend to the giving of directions to the State as to the Administration of the said areas”. In accordance with the provisions enunciated in para 3 of the Fifth Schedule to the Constitution, the Governor(s) of State(s) having Scheduled Areas therein i.e. Andhra Pradesh, Chhattisgarh, Gujarat, Jharkhand, Himachal Pradesh, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana, require to submit the Governor’s Report every year.

Table No. 1 – Status of Governor’s Report on Administration of Scheduled Areas in the State of Odisha

[1] BK Manish & Ors. vs. State of Chhattisgarh & Ors. judgment and order dt. 12th March 2013 in WP (PIL) 23 of 2012, Bilaspur High Court.

[2] Edwingson Bareh vs. State of Assam (1966) 2 SCR 770

[3] Report of MPs and Experts to make recommendations on the salient features of the law for extending provisions of the Constitution (73rd) Amendment Act, 1992 to Scheduled Areas, 1994, p.14. Accessible at http://www.odi.org.uk/projects/00-03-livelihood-options/forum/sched-areas/about/bhuria_ report.htm