Context: Jharkhand has seen tensions escalate between the Governor and the State government over the TAC on the question of Governor’s power of constituting and making rules for the Tribal Advisory Council (TAC) under the Fifth Schedule being discretionary. 

Constitutional Provision

Art 244(1) of Part X: The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam, Meghalaya, Tripura and Mizoram.

Part B of Fifth Schedule deals with “Administration and Control of the Scheduled Areas and Scheduled Tribes” provides for the following:

“There shall be established in each State having Scheduled Areas therein and, if the President so directs, also in any State having Scheduled Tribes but not Scheduled Areas therein, a Tribes Advisory Council consisting of not more than twenty members of whom, as nearly as may be, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State. Provided that if the number of representatives of the Scheduled Tribes in the Legislative Assembly of the State is less than the number of seats in the Tribes Advisory Council to be filled by such representatives, the remaining seats shall be filled by other members of those tribes.”

Tribal Advisory Council (TAC)

• Each state which has scheduled areas should constitute a TAC.
• States which have schedule tribe but not the schedule areas can also constitute TCA after President’s direction.
• TCA can have at most 20 people of which 3/4^th members (at most 15) should be the representatives of schedule tribe in state legislative assembly.
• If the number of representatives in legislative assembly is less than required, then the remaining seats should be filled by the other member of the tribal community.

Function of TAC

It shall be the duty of the Tribes Advisory Council to advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the State as may be referred to them by the Governor.

Part C of Fifth Schedule deals with “Schedule Area” provide that 

“The President is empowered to declare an area to be a scheduled area. He can also increase or decrease its area, alter its boundary lines, rescind such designation or make fresh orders for such redesignation on an area in consultation with the governor of the state concerned.”

Part B of Fifth schedule also says that, 

The Governor may make rules prescribing or regulating, as the case may be,

• The number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof.
• The conduct of its meetings and its procedure in general.
• All other incidental matters.

Role of Governor with respect to TAC

• Fifth Schedule grants extensive powers to the Governor who, by public notification, may direct that a law enacted by the Parliament or the State Legislative Assembly shall not apply to a Scheduled Area, or may apply subject to certain amendments or restrictions as he/she specifies. 
• The Governor may only make such regulations on consultation with the concerned Tribes Advisory Council and subject to the final assent of the President.

Under this Jharkhand government has notified the Jharkhand Tribes Advisory Councils Rule, 2021 which contains the provision of Composition of the TAC

• TAC will be an 18-member body.
• Chief Minister of the state Jharkhand is the ex-officio chairman and member of the council. 
• The Minister of Scheduled Tribes Welfare, shall be Ex-officio Vice Chairman and member of the council.

Contemporary Challenges faced by TAC

• Despite mandate of the Constitution there was a delay in establishing the TACs, which led to potential encroachment in their area of governance by other bodies.
• As both the cabinet and the TAC are headed by the same person, it becomes very difficult for the TAC to overturn a decision taken by the cabinet, even if it was not in the best interest of tribal communities in scheduled areas.
• There is a near complete usurpation of TACs by the political parties in power, as observed by Xaxa Committee.
• Due to the presence of high forest coverage and rich mineral sources, Schedule areas have a very high business potential which make them vulnerable to the pressure politics of corporate lobby which decrease TAC’s influence in policy making.
  • Governments of eight states, where most of the Fifth Schedule areas are located, are unwilling to touch the subject which hurts big business interests.
• The Bhuria Commission Report (2002-04) mentioned that the State Government do not put any important matters to the Council for advice.
  • In all these years of its functioning, the TACs have rarely made any significant policy proposals or recommendations on tribal and developmental issues.
• Even when issues are taken up by the TAC, it has been noted that there is rarely any sustained and consistent engagement with the matter in the form of follow-ups and field visits.
• As per the minutes TAC’s meetings, none of the TACs discussed the issue of land alienation among tribals effectively.
• The concerned departments do not always submit Action Taken Reports to the TAC and therefore, the earlier decisions and recommendations of the TACs, even when implemented, are not revisited in subsequent meetings.

Constitutional Provision regarding office of Governor 

• Art 154(1): The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution
• Art 163(1): There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion.

Court Cases

B.K. Manish & Others v/s State of Chhattisgarh & Others

In this case, Chhattisgarh High Court held that the Governor could not exercise his discretion as a matter of discretion for constituting and making rules for the TAC under the Fifth Schedule. Which was later upheld by the Supreme Court.

Way Forward

• Political interference in the functioning of the TACs should be minimise and they should be provided with the adequate resources to sustain the grass-root governance.
• The economic development in the region should be balanced with the tribal interest for which TAC can be used to promote sustainable development in the schedule areas.