The Chhattisgarh High Court has observed that the Court in exercise of its power under Article 226 of the Constitution of India cannot order to frame a law, which has a legislative trapping under the ‘doctrine of separation of powers’.
The Division Bench of Acting Chief Justice Goutam Bhaduri and Justice N.K. Chandravanshi disposed of a Public Interest Litigation (PIL) filed seeking direction to the State government to send the recommendation to Central Government Tribal Ministry for including ‘Mowar community’ in the list of Scheduled Tribe which was sought for in the earlier point of time.
The petition has been preferred by a bunch of people who claim to be included in the ‘Scheduled Tribe list’ of the Constitution (Scheduled Tribes) Order, 1950.
It is submitted by the counsel for the petitioners that the petitioners who belong to ‘Mowar’ community come under Scheduled Tribe for which initially in the year 2006, the State government was asked by the Ministry of Tribal Affairs to submit the ethnographic report. The follow up of the same was being done and as appears the recommendation for including the ‘Mowar community’ in the list of Scheduled Tribe was not sent by the State government. He refers to C.G. State Scheduled Tribe Commission recommendation dated 06.09.2012 wherein ‘Mowar community’ was advised to be included in the Scheduled Tribe list. He further submits that as per C.G. Rajya Anusuchit Janjati Ayog Adhiniyam, 1995, the commission can recommend the State government to include some community and the said recommendation would be binding on the State government and if the State government do not agree to such suggestion, to deviate reasons should be assigned as per Section 9 (2) of the Act of 1995. He prays that State government may be directed to send the recommendation to Central Government Tribal Ministry for including ‘Mowar community’ in the list of Scheduled Tribe which was sought for in the earlier point of time.
S.C. Verma Advocate General submitted that as per information received, the recommendation to include ‘Mowar community’ in the list of Scheduled Tribe was already forwarded in the year 2003 itself. He further submits that if some query remains the need full shall be done in terms of Section 9 (2) of the Act of 1955.
“In view of such factual aspects, if the issue is pending at the end of Union and the State government which contends the recommendation has already been sent or otherwise necessary compliance shall be made, this Court in exercise of its power under Article 226 of the Constitution of India cannot order to frame a law, which has a legislative trapping under the ‘doctrine of separation of powers’. Since it has been stated at the bar by the State that recommendation has already been sent and if at the ministerial level something is left out it would be done, it is expected that within reasonable time follow up shall be made by all authorities to complete the ministerial work. Consequently no issue is left open for adjudication”. the order reads.