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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (PIL) No23..of 2012 In Re: Unconstitutional Functioning of the Tribes Advisory Council PETITIONER: B.K. years, Vihar, Manish, R/oS/o Shri

Satyanarayan, Aged about 32 K-46, Road, Rajdhani Off Saddu, Kachna Road,

Vidhansabha Raipur (C.G.) VERSUS RESPONDENTS: 1.

State of Chhattisgarh Through the Chief Secretary, Government of Chhattisgarh Mantralaya, DKS Bhawan, Raipur (C.G.)

2.

Secretary, Scheduled Caste Department, Government of Chhattisgarh Mantralaya, DKS Bhawan, Raipur (C.G.) Tribe, Scheduled Development

PETITION UNDER ARTICLE 226 OF

THE CONSTITUTION OF INDIA 1. PARTICULARS OF THE PETITIONER (S) A Chhattisgarh-born screenwriter & columnist, the petitioner has also been communications advisor to several voluntary organisations like Raigarh-Ambikapur Health Association

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(RAHA) and State Health Resource Center (SHRC). Last man to have sat on hunger strike in Dantewada (demanding appropriate nutrition & hygiene for tribal orphans), he has formed first autonomous cooperative of tribal women in Farsabahar, Jashpur. 2. PARTICULARS OF THE RESPONDENT (S) As stated above in the cause title 3. (A) PARTICULARS OF THE CAUSE/ORDER AGAINST WHICH THE PETITION IS BEING PREFERRED. The present petition is preferred to challenge the unconstitutional and arbitrary Tribes Advisory Council Rules, 2006 of the ST & SC Development Department vide gazette notification F-1-21/25-2/TWD/06, dated 31/10/2006. The Rules are annexed as ANNEXURE P/1.

(B)

SUBJECT MATTER IN BRIEF.

The present petition is preferred to challenge the unconstitutional and arbitrary Tribes Advisory Council Rules, 2006 of the ST & SC Development Department vide gazette notification F-1-21/25-2/TWD/06 dated 31/10/2006 whereby the respondent Department has made afresh business rules for formation of the Tribes Advisory Council which are directly in conflict with Schedule V of the Constitution of India, on multiple counts. As per Para 4(2) of Schedule V, the Tribes Advisory Council shall advise on such matters as may be referred to it by the Governor. However, as per the said Rules, not only can the agenda of the meetings of the Council be decided by the Government among others but its Chairman can also introduce a new

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agenda without any reference by the Governor in the midst of a meeting. The TAC (an advisory body empowered in present constitutional scheme to help supersede both the state & union cabinet; as also any law passed by state assembly or the parliament) thus has been reduced to just another executive body which acts at the instance of state cabinet (through its chief & select members and officers) thereby subverting the Constitutional provision. This is a unique case where the state government, emboldened by circumstances, has not even bothered to take usual care while bypassing the Constitution for its convenience so as to at least ensure the aggrieved people will have to prove painfully in the court of law that the spirit of Constitution has been violated; the subversion here is of the very letter of the Constitution. (C) (I) The present petition under Article 226 of the Constitution of India is being filed by way of public interest litigation and the petitioner has no personal interest. The petition is being filed in the interest of the Tribal Community of the State of Chhattisgarh. (II) That the petitioner has earlier not filed any other public interest petition. (III) That the petitioner is filing the present petition on his own and not at the instance of someone else. The litigation cost, including the advocates fee and the traveling expenses of the lawyer, if any, are being borne by the petitioner himself.

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(IV) The source of information of the facts pleaded in this public interest litigation is based on the notification issued by the Government of Chhattisgarh. Also, Bhuria released Committee in the report year has been is referred by the petitioner which was 1995 and available in the public domain, as also some documents collected for research & reporting purposes. (VI) The petitioner had made representation to His Excellency The Governor on 30/10/2011 through a letter but no response was received in last 7 months. A receipt of the reminder is given in ANNEXURE P/2. (VII) That to the best of knowledge of the petitioner, no public interest petition (whether filed by the petitioner or by someone else) raising the same issue is filed before this Honble Court or before any other court. 4. WHETHER CAVEAT FILED, IF YES, WHETHER COPY OF THE PETITION SUPPLIED TO THE CAVEATOR. The petitioner declares that he has not received any caveat in this matter. 5. DETAILS OF REMEDIES EXHAUSTED. The petitioner declares that there is no other remedy available to the petitioner, which could be more efficacious than filing this petition.

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6. MATTER NOT PREVIOUSLY FILED OR PENDING WITH ANY OTHER COURT OF LAW. The petitioner further declares that he has not filed any other writ/suit/application /proceedings with regard to the subject matter of this writ petition before any other court of law having jurisdiction in the matter. 7. DELAY, IF ANY, IN FILING THE PETITION. The petitioner declares that there is no delay in filing the present petition. 8. FACTS OF THE CASE 8.1 That the present petition seeks to challenge the

Tribes Advisory Council Rules, 2006 on the grounds hereinafter mentioned. The Rules are annexed as (Annexure P/1). Also, the petitioner had made representation to His Excellency The Governor on 30/10/2011 through a letter but no response was received in last 7 months. A receipt of the reminder is given in (ANNEXURE P/2). 8.2 That the Constitution of India in Schedule V provides

for provisions as to the administration and control of scheduled areas and scheduled tribes. Part B of Schedule V provides for the constitution of a Tribes Advisory Council (TAC hereinafter). The following provision is quoted below for the sake of reference: 4. Tribes Advisory Council.-(1) 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

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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. (2) 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. (3) The Governor may make rules prescribing or regulating, as the case may be,(a) 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; (b) the conduct of its meetings and its procedure in general; and (c) all other incidental matters. 8.3 That in pursuance of the aforementioned provisions, the respondent ST & SC Development Department issued a notification vide F-1-21/25-2/TWD/06 dated 31/10/2006 bringing into effect the Tribes Advisory Council Rules, 2006 made by His Excellency the Governor of the State of Chhattisgarh. The Rules provide for the constitution of TAC, term of the Council, conduct of its meetings, powers of the Chairman and such other provisions. Rule 12 of the Rules states 12(1)Such issues as and be proposed by the that the Chairperson/members Scheduled Tribes government included in

focus on the welfare and upliftment of the shall proceedings of the meeting; however, issues proposed in this direction by the Governor shall indispensably be presented in the meeting.

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(2)- No issue shall be taken up for discussion and included in the proceedings and no proposals shall be passed in a meeting unless the issue has been mentioned in the notice for the meeting, however, the Chairperson can, using his discretion, permit such issues to be taken up for proceedings, that he thinks necessary and are in direction of the motto of the council at large but was excluded in the notice. The above rules are in direct conflict with the mandate of TAC as given in paragraph 4(2) of the Schedule V of the Constitution of India. Allowing somebody other than the Governor to refer a matter for advice to the TAC is a clear attempt to reduce a special empowered constitutional mechanism to a mere committee on tribal affairs. It may be noted that the constitutional mechanism provided in the form of the TAC is part of a separate governance structure provided for the welfare of the tribal community. The letter and intent of the Constitution can thus not be misconstrued to mean that the TAC only remains a part or an extension to the Government to be used as a body to introduce such schemes and implement such decisions as the Government may please. As the rules give the Chairman of the Council the power to introduce any agenda in the meeting without any reference being made by the Governor of the State, it is a clear violation of the Constitutional provision which bestows such power only upon the Governor. Thus, the Rules not only bypass the letter of the Constitution but also kill the spirit of the Constitution, of providing a separate governance structure for the benefit of tribals.

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8.4 That it is humbly submitted that after the said Rules were introduced in the State of Chhattisgarh in the year 2006, numerous meetings have taken place in the TAC where significant issues touching the welfare of tribals were discussed and deliberated over. However, these issues which could only be discussed as part of the agenda referred by His Excellency The Governor of the State were rather discussed without any such reference. The reference for the most part was infact made by offices of the State Administration without any direction from the office of His Excellency The Governor. Such meetings and the decisions that followed thus lose sanctity in the eye of law as the TAC was acting as a mere stooge of the State Administration and was not working to implement the true purport of the mother provision Schedule V of the Constitution of India. Copies of the minutes of meeting of the TAC where the agenda was not introduced by His Excellency The Governor is annexed as ANNEXURE P/3 (Colly). 8.5 That reference by His Excellency The Governor for

fixing of agenda is not a mere option or choice but is infact the very reason for which the TAC should exist. However, for the last 6 years umpteen number of decisions were taken by the TAC without the fulfillment of this basic requirement. Thus all decisions which were taken on issues which were not part of the agenda as referred by His Excellency The Governor are null and void and hence lack the sanctity of law. 8.6 That Rule 15 of the Rules provides 15-No

member shall raise objection in the proceedings of the meeting with respect to any seat of the council being vacant, any flaws or malpractice in the nomination of the members.

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The above provision stipulates that in case there is any irregularity in the appointment of any of the members of the Council, no questions can be raised as to the validity of the proceedings on the this ground. Such provision not only creates exclusion to the power of the Courts in determining the validity of proceedings but infact shroud the decisions also which are taken in such meetings. Thus in effect, any irregularity in appointment of the members or any similar ground will still keep the proceedings sacrosanct. This position is not maintainable in law as it is not a prerogative of the Rule making body/ legislature to decide what remains challengeable and what not. Such exclusive provisions are not only detrimental to the interest of the class they seek to regulate but also the functioning of a democracy. Thus if the proceedings of TAC were conducted without any agenda being referred by His Excellency The Governor, it can not be protected by saying that it is protected under the Rules. The Rules are but derived from the power vested by the Constitution of India and thus can not be in direct violation of the same.
8.7

That the said Rules have drawn from the Bhuria Committee Report which said- Para 18- it should be able to deal with matters which it thinks are important, in addition to those on which its advice has been sought on reference by the Governor, as indicated in the Fifth Schedule. Now, it must be kept in mind that a committee report is not legally enforceable on its own and unless the Constitution is amended to incorporate the suggestion above, it remains unconstitutional. (2) GROUNDS

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9.1 For the reason that Tribes Advisory Council is a special mandate constitutional and utility body are whose clearly composition, spelt out in

paragraph 4(1), 4(2) and 5(5) of the Fifth Schedule of The Constitution of India. 9.2 For the reason that aforementioned business rules for TAC, made under the provisions of paragraph 4(3) of the Fifth Schedule blatantly violate the Constitution insofar they have altered the very purpose of the constitutional body (TAC) without any authority. 9.3 For the reason that Allowing somebody other than the Governor to refer a matter for advice to the TAC is a clear attempt to reduce a special empowered constitutional mechanism to a mere committee on tribal affairs. Incumbent Chief Minister has been issuing DIRECTIONS to various departments while chairing the TAC meetings when the Schedule V (through its nomenclature and definition) clearly informs that TAC is but an advisory body. 9.4 For the reason that even the Honble Supreme Court of India in the matter of Union of India vs. Rakesh Kumar and ors, CIVIL APPEAL NOS. 484-491 OF 2006 has highlighted the significance of the Tribes Advisory Council. The following para may be referred with regard to the same 4. Hence, it is evident that the framers' intent behind including the Fifth Schedule was that of a separate administrative scheme for Scheduled Areas in order to address the special needs of tribal communities.

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9.5 For the reason that Para 2 of Fifth Schedule when seen in the historical context of evolution of administrative scheme for Scheduled Areas through Govt. of India Acts of 1919 & 1935, draft constitution in constituent assembly (Samatha Vs. Govt. of Andhra Pradesh, SC, 1997-para 140-142, 145) makes it clear these provisions are overriding in nature to the general state administration. Also, the powers given herein to governor are independent of the aid & advice of council of ministers; a fact later endorsed by several jurists in last 2 years. 9.6 For the reason that Debates in constituent assembly make it clear that as Constitution of India brought tribal areas under the effective control of federal government for the first time in Indian history, certain concessions were made to assuage the fears of tribal representatives that even guaranteed representation in policy making through appropriate reservation on proportionate number of constituencies will come to naught as their minority voice will be smothered in council of ministers (these fears were not unfounded; it took 4o years to induct a tribal representative in union cabinet and, till date not a single President has sought a proper report from governors on administration of scheduled areas). This context clarifies that TAC is supposed to be a part of remedial/contingency, administrative arrangement and not, a subsidiary/complimentary to the state government as suggested by Bhuria Committee, draft National Tribal Policy-2004 and missive/directives of various union ministries.

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9.7 For the reason that For the reason that TAC which could have been a useful mechanism for safeguarding the interests of the scheduled tribes has been subverted by multiple agencies in multiple ways, the latest example of which is the business rules made by Govt. of Chhattisgarh, as notified in state gazette on Oct.31, 2006, vide notification no.F1-21/25-2/TWD/06. (3) Reliefs Sought.

The petitioner craves the indulgence of this Honble Court to; 10.1 Kindly call for records of all the decisions taken by the TAC from its inception. 10.2 Kindly quash the Rules made by notification no.F1-21/25-2/TWD/06 dated 31.20.2006 as they are ultavires the constitutional provision. 10.3 Kindly quash all the decisions which were taken by the Council without the reference for the issues being made by His Excellency The Governor.

10.4

Any other order that may be deemed fit and just in the facts and circumstances of the case may also kindly be made.

DATE BILASPUR PERSON

(BK MANISH) PETITIONER IN-

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CERTIFICATE It is certified that due care has been taken in the case to comply with the provisions of Chhattisgarh High Court Rules.

DATE BILASPUR PERSON

(BK MANISH) PETITIONER IN-

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