By Fabian Lyngdoh
The Khasi society has a dynamic tradition that is not submissive to bondage. Though this tradition has frozen during the British rule, it came out anew in the form of a modern dorbar-shnong. The evolution of the dorbar-shnong has a root in the social and cultural history of the society. So even if the dorbar-shnong is a modern institution, it is traditionally legitimate.
The dorbar-shnong today is not totally unconstitutional. It has an indirect constitutional recognition through the sanad to the rangbah-shnong issued by the chief of an elaka who is directly recognised by the District Council under the Sixth Schedule. Then, with or without the sanad the Meghalaya State Government has been implementing the various development and civic welfare schemes through the agency of the dorbar-shnong. So the dorbar-shnong’s existence today is constitutionally legitimate.
The dorbar-shnong has the support of the free choice of the Khasi inhabitants of the village as a spontaneous social authority that emerged from within and not imposed from outside the society. So as far as the Khasi society is concerned, the dorbar-shnong is also sociologically legitimate, though it is not fully democratic because of the exclusion of women, and being ethno-centric in nature it is not sociologically legitimate in a multi-ethnic and multi-cultural community.
With regard to its efficiency, the dorbar-shnong is the grass roots legislative body in the Khasi society. At every dorbar, resolutions with regards to norms of social behaviour and rules of functioning are passed and the people are generally found to submit to these village level legislations which are called ‘ki rai-dorbar’. At every dispute with regard to the functioning of the rangbah-shnong and the village executive committee, and with regard to anti-social behaviour, reference is made to ki rai-dorbar (dorbar’s decisions). Ki rai-dorbar were subject to amendments in the sessions of the dorbar-shnong from time to time to suit the emerging requirements in the village. The dorbar-shnong is quite efficient and effective in the maintenance of peace, and law and order in the village.
In the matter of law enforcement; the dorbar-shnong plays a spontaneous and effective role and the inhabitants submit habitual obedience to its authority by the natural and spontaneous implication of the spirit of the dorbar-shnong itself. The source of this public authority and responsibility is traditional in nature, and it did not arise from any expressed or implied order of the dorbar-raid, the dorbar-hima, the district council, or the state government.
The dorbar-shnong functions as a grass roots court of justice. Many minor cases of civil disputes and crimes are effectively solved at the level of the dorbar-shnong itself, and comparatively, few cases decided by the village dorbar proceed to higher courts. In judicial matters, the procedures of the dorbar-shnong in most villages do not discriminate between Khasi and non-Khasi inhabitants.
The dorbar-shnong effectively plays the role of the government’s administrative functionary at the village level with regards to health service, education, census enumeration, election processes, crime detection, and developmental services, and also as a development agency for all rural socio-economic development programmes. The extent of social cohesion in the village is centred on the proper functioning of the dorbar-shnong with the office of the Rangbah-shnong. Lastly, the dorbar-shnong is quite effective in safeguarding the tribe’s political autonomy in governance and administration of land within the village. If the Khasi tradition is to be provided constitutional protection under the Sixth Schedule, the dorbar-shnong is the only legitimate institution which establishes a balance between the Khasi traditional system and modern democracy for the need of the Khasi community.
I would like to reiterate the question of territorial authority which is the foundation on which the administrative system is based. In the greater part of India, the Government holds the ownership authority over all lands. The panchayats in the villages are constituted to administer the lives of the people residing in the lands which ultimately belong to the Government. The panchayats are not territorial authorities. In the north-eastern States, other than Meghalaya, almost all lands in the non-scheduled areas belong to the State Governments; and all lands in the Sixth Scheduled areas belong to the District Councils. The people pay land revenue either to the District Councils or the State Governments. Village Councils for grass roots administration are constituted either by the District Councils or by the State Governments as the ultimate authorities over the lands.
In the Khasi and Jaintia Hills on the other hand, the Hima, the District Councils and the State Government are not the owners of the land. Land belongs to the people not to the governing authority, and the people pay land revenue to no one. The people hold the view that their land is not the gift of any new constitutional system, but as ancestral property. In the past, the concept of ‘land belongs to the people’ had a legal embodiment in the dorbar-raid. Today this concept has no constitutional or legal embodiment; it remains vague as an incomplete sentence without a full-stop. This situation paved the way for the emergence of modern individual landlords. Para 3 of the Sixth Schedule empowers the District Council to make laws with respect to the allotment, occupation or use, or setting apart of land and management of forests. This provision implies that the District Council is the owner and the ultimate authority over tribal lands. Now how can the Khasi Hills Autonomous District Council allot or set apart lands or manage forests over which it does not have ownership authority? Today the KHADC manages its own private forests on limited lands purchased from private parties or gifted by the hima/elaka. Herein lies the crux of the issue and the reason why the dorbar-shnong functions like a mini government of an independent State; because in line with tradition it has spontaneously evolved in the footsteps of the dorbar-raid and also acquired sociological legitimacy as a territorial authority in the people’s psyche.
The recent judgement of the High Court has evoked mixed feelings. It is true that the dorbar-shnong should not exercise authority in any way contrary to the established rules of law in the country, and that the Court can pass judgement only as per law in existence. But it is also true that that dorbar-shnong cannot be treated at par with the panchayats which are the government institutions constituted to administer village communities without territorial authority over the land. The people in the Khasi villages on the other hand settle in the lands which do not belong to the Government. It is true that some village headmen overstep their authority and they should be punished accordingly, but we do not expect that civil or criminal lapses of some idiots would affect the constitutional status of the institution itself.
The District Council constituted under the Sixth Schedule is supposed to mould the life and development of tribals according to their own genius, tradition and culture and that the ownership and management of land by the local people be safeguarded. In 1997 the Gauhati High Court has opined, “The Sixth Schedule itself is part of the Constitution, not something above or beyond it”. It is true that the Sixth Schedule is not above or beyond the Constitution, but it is also true that it is not below it. With regard to issues in the Sixth Schedule areas the concept of the State sovereignty is also often invoked. I believe that it does require a person to be a registered lawyer to recognize the difference between the ‘State’ and the ‘Government’. The question is not on the issue of the sovereignty of the State but on the issue of the sovereignty of the Government. By the Sixth Schedule to the Constitution, the State has set some limits to the sovereignty of the Government with regard to certain tribal areas. The dorbar-shnong cannot be a direct subordinate of the Deputy Commissioner as long as the Sixth Schedule is in existence, and as long as the Government does not acquire ownership authority over the land.
It is up to the District Council to reform the dorbar-shnong on a constitutional and democratic line befitting today’s situation. We need necessary changes in the grass roots administration. It all depends on the wisdom and discretion of the District Council to prescribe what the Khasi tradition is, or what the contents of tradition and social customs should be. [author’s contact: [email protected]]