By Fabian Lyngdoh
A comprehensive bill amending the Sixth Schedule and also to the Article 280 (bb) (c) of the Constitution drafted by the Ministry of Home Affairs, Government of India, has been circulated to different Institutions for views and comments. The purpose of these amendments is to strengthen the councils set up in the States of Assam, Meghalaya, Mizoram and Tripura, as it is pointed out that after the 73rd and74th Constitutional amendments, large scale administrative and financial powers had been delegated to local bodies constituted all over the country except to the Sixth Schedule areas. Since these proposed amendments are of public interest and are of no secret matter, I would like to highlight some points for public enlightenment and general awareness.
A review of the Sixth Schedule Constitution provisions and provisions of the 73rd and 74th amendments undertaken through the initiative of the Ministry of Home Affairs, Government of India brings out certain deficiencies in the provisions included in the Sixth Schedule which make the 73rd and 74th amendments not applicable to the Sixth Schedule areas. These are:- i) Establishment of Village Councils is not mandatory in the Sixth Schedule areas, where they exist (like the Dorbar Shnong), do not have Constitutional protection for election on the basis of universal adult suffrage and tenure. ii) The absence of a State Finance Commission and hence no provision for separate fund for the ADCs in the Sixth Schedule areas on the pattern of Panchayati Raj Institutions. iii) There is no Constitutional provision for reservation for women in the Councils of Sixth Schedule areas. Councils under the Sixth Schedule here means, the District Council, Regional Councils, Dorbar Hima, Dorbar Raid, Dorbar Shnong etc.
The Ministry of Home Affairs entrusted the task of studying and recommendation to different agencies to rectify these deficiencies. The National Commission to Review the Working of the Constitution (NCRWC) vide its recommendation No.9.23 (i) to (iii) suggested to:-
i) Devolve political powers with precautions to maintain traditional institutions in Sixth Schedule areas. ii) Introduce positive democratic elements like gender justice and adult franchise into these traditional institutions to make them more broad-based and capable of dealing with a changing world. iii). Provide safeguards for minority and micro minority, and protection of their traditions. iv) Evolve a process of Central funding for Plan expenditure to the Councils directly.
The Second Administrative Reforms Commission (ARC) in its seventh report (February, 2008) made the following recommendations:-
i) Setting up of a State Finance Commission. ii) Setting up of a State Election Commission as provided in the Panchayati Raj System for conducting election to the councils. iii) Providing discretionary powers to Governors without having to act on advice of the Council of Ministers on all issues relating to Councils.
The Ministry of Home affairs in the Sixth Schedule to the Constitution (Amendment) Bill 2012, draft and The Constitutional (Amendment) Bill 2012, draft incorporated these recommendations. Of special mention are the following provisions:-
i). The ratio between the population of the territorial area of the Village Council and the number of seats in the Village Council to be filled by election shall, so far as practicable, be the same throughout the autonomous district. ii) With respect to other bodies like Elakas and Village Durbars, their term of office shall be in accordance with the Act or the prevailing customary practices and traditions as the case ma be. However, such bodies may set up Village Development Board (VDB)/ Village Councils (VCs) for developmental activities to be elected on the basis on universal adult suffrage. These VDBs and VCs shall be answerable to the respective Village Durbar/ Elaka. iii) One-third of the total number of seats in each Council shall be reserved for women.
The entire philosophy of the Sixth Schedule to the Constitution is aimed at protection of the tribal areas and interests, by constitutionally mandating District or Regional Local Self Government Institutions. These institutions are entrusted with the twin task of protecting tribal culture and custom, and undertake development. The 73rd and 74th Constitutional amendments which entrusted the list of subjects in the Eleventh Schedule to the Panchayats or Village Councils in rural areas and the list of subjects in the Twelfth Schedule to Municipalities in urban areas respectively, are mainly concerned with the task of undertaking developmental activities not with protecting tribal culture and custom.
Therefore the expert committees and commissions recommended the introduction of positive democratic elements in the tribal institutions if they want to avail the opportunities provided by the 73rd and 74th Constitutional amendments.
Any institution undertaking developmental activities must take into consideration not only the issue of culture and custom but of the existing society and the people living in it, of the existence of minorities and micro minorities and of human rights and gender justice. Expert committees also recommended that directly elected village level representative bodies need to be constituted and adequately empowered in Autonomous Hills Councils areas of Meghalaya and that careful steps should be taken to devolve political powers through the intermediate and local-level traditional political organisations, provided their traditional practices carried out in a modern world do not deny legitimate democratic rights to any section in their contemporary society.
Some section of the people in Meghalaya led by tribal elites seeks to place the institutions of hereditary chiefs as intermediaries in the flow of fund between the Autonomous Councils and the Village Councils in this developmental scheme. What is happening in the jurisdiction of the Khasi Hills Autonomous District Council is that the traditional Chieftains are authorized to collect revenue in their respective elakas as permissible by custom. But there is no mechanism to hold the Chieftains accountable by the people at large or by the District Councils for the manner they utilize the revenue. The hereditary non-democratic traditional Chieftains do have a role in the protection of tribal culture and custom and the District Council or the Government should provide enough authority or financial assistance for that purpose, but as far as utilization of public funds through tax payers’ money for the developmental purposes of the villages and towns is concerned, that should be channelized through democratically structured institutions which are directly answerable to the people, not to custom.
The whole intention of the proposed amendments of the Sixth Schedule to the Constitution are to remove undemocratic elements from the provisions of the Sixth Schedule which stand as deficiencies so that financial empowerment of the grass-roots governance institutions through provisions of the 73rd and 74th amendments could be materialized. Bringing the hereditary Chieftains into the picture would bring in greater deficiency in the provisions of the 73rd and 74th amendments.
The flow of funds for developmental purposes should be from the Government to the Autonomous Councils and directly to the Village Councils. Some adjustment problem that would arise between the State Government’s executive agencies and the Autonomous Council’s agencies in Meghalaya would have to be looked into. Scheduled areas comprise particular geographical territories and minority tribal populations within the States of Assam, Mizoram and Tripura, while practically, almost the whole geographical territory of the State of Meghalaya falls within the Scheduled Areas covered by provisions of the Sixth Schedule to the Constitution, and the tribal people comprise the majority of the population of the State. The Sixth Schedule Areas of Meghalaya, and the State of Meghalaya are in reality not two different entities but comprise the same area and the same population. Hence whatever activities are to be undertaken by the State Government’s agencies and the Autonomous Councils would be within the same geographical areas and the same population. That is not so in the States of Assam, Mizoram and Tripura. Therein lies the fundamental difference between the function of the ADCs in Meghalaya and other states and there is therefore a need to clearly demarcate areas of administration by the Councils and the State Government here.
(The author is Chairman, Khasi Hills Autonomous Dist4rict Council and can be contacted at [email protected])