By Fabian Lyngdoh
Social scientists say that Society is a web of social relationships. As such it includes the totality of social practices in a community. The social practices of a given community established in their turn all kinds of power equations and relations between the members. Then the State evolved to give fixity to these power relations, and thereby established stability in society. A society becomes a State when it settles in its geographical abode and constitutes a formal Government. The Hebrews under the leadership of Moses were a society. They became a state only when Joshua settled them in Palestine and constituted a formal Government. Hence, the state exists within the society and derives its power from the society. In the modern liberal society of our times the sphere of the civil society is larger than that of the state. Yet the society and the state are not two contradictory realities. They do not stand in conflict with one another. Civil society cannot function properly without the state. It is the state that provides the integrative framework within which the civil society operates. This framework however must be administered in a manner consistent with the shared culture of the society.
The state is instituted on four essential elements: population, territory, government and sovereignty. Sovereignty is defined by J.K. Bluntschli, as ‘the power of the state, considered in its highest dignity and greatest force.’ It is conceived as the supreme will and commanding power of the state: it is the will of the nation. It is the irresistible, absolute and uncontrolled authority in which the supreme legal power resides, and being itself unrestrained by law. It has the undisputed right to determine the framework of rules, regulations and policies within a given territory by which the society is to be governed accordingly. J.J. Rousseau located sovereignty in the people, expressed as the ‘General Will’ of the community. In today’s democratic state, sovereignty lies with the electorate, which has the power to make or unmake a government at regular intervals. It is the sum total of all influences, which lie behind the law. The ‘General Will’ or the political sovereign is indeterminate, yet its existence cannot be ignored. The state is the political sovereign and its sovereignty is exercised by the government within the bounds of the constitution. The state is instituted on the express will of the society, and the government as the legal sovereign is constituted according to the constitution of the state. Thus the government is subservient to the state, and the state is subservient to society.
The state is a politically organized society, and the government is the institution through which this politically organized society functions. It is merely an instrument of the state. The government’s authority is limited by various social conditions and it has to exercise its authority, directly in accordance with the laws of the land, and its functioning has to be based upon the free will of men. The state has three organs: legislature, executive and judiciary. These three organs of the state should exercise their powers according to the Constitution which is the primary law of the land and the Word of the state.
Modern democracy is based on the concept of popular sovereignty which is embodied in a democratic constitution and manifested in the electoral process. In the Preamble of the Constitution of India, the expression “WE, THE PEOPLE OF INDIA”, stands for the civil society (citizenry). This civil society had solemnly resolved to constitute a State, called the “SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC of India”, with the objective to secure to all it citizens: JUSTICE, LIBERTY, EQUALITY, and FRATERNITY. The Preamble is the express will and objectives of the citizenry in creating the state. The will and objectives of the society expressed in the Preamble cannot be amended under Article 368 of the Constitution. The state, in turn delivers its Word through the rest of the Constitution. The Constitution is neither the word of the Government of India nor the word of God, but it is the Word of the state. The laws and the government are created according to the supreme Word of the state as enshrined in the Constitution.
This Word of the state prescribes some constitutional safeguards for the tribals and other weaker sections of the Indian society through Articles, 15, 16(4), 46, 164, 224, 274, 275, 320(4), 332,334, 335, 338, and 339(2). Particularly for the tribes of North-East India, on the basis of Articles 244(2) and 275(1), the Sixth Schedule was inserted in the Constitution. The Sixth Schedule is a part and parcel of the Constitution; it is neither above the Constitution nor below it. It is a chapter of the Word of the state which sets some limits to the sovereignty of the government with regard to certain tribal areas. The Sixth Schedule does not, and cannot limit the sovereignty of the Indian State, but it is in fact formulated to fulfil the requirements of the state to restrain the sovereignty of the government for some specific purposes. The legislature, the executive and the judiciary are all bound by these limitations set down by the state. The scribes who drafted the Sixth Schedule to the Constitution of India, and the representatives in the Constituent Assembly who passed it had not done so merely on good will, but they had been compelled to do so by historical precedents and the diversified nature of the Indian society. In other words, the Government had been devised according to the requirements of the state, and the state had been instituted according to the nature of the society. So the Sixth Schedule is intended as a constitutional necessity to accommodate and reconcile the tribal aspirations with the tenets of a Democratic Republic.
The District Councils were constituted with the objective of moulding the life and development of tribals according to their own genius, tradition and culture, but within the bounds of the Constitution. The District Council has the means to restrain the sovereignty of the Government, including the Judiciary, by making necessary laws, provided that these laws are reasonable and do not contradict the Constitution itself. It is given to understand that the crux of the matter in the recent judgment of the Meghalaya High Court is not because the Judiciary intended to do away with the traditional authority of the dorbar-shnong and the rangbah-shnong, or interfere with the domain of the District Councils, but it is because the District Councils have not exercised their domain to restrain the sovereignty of the Judiciary through necessary laws as empowered to them by the Sixth Schedule. It is all because of the absence of a proper Village Administration Act.
The Sixth Schedule is supposed to provide justice to people who are governed by its provisions in certain areas of the Indian State, but not as a licence for vested interests. The District Councils are entrusted with the twin task of protecting tribal culture and tradition, and also to guide the course of development. Development paradigm in India is today conceived of in terms of empowerment of the people through direct funding to the democratically constituted local self-governments at the village or locality level. What is required in the Khasi and Jaintia Hills is to remodel the dorbar-shnong on democratic lines. In development matters, consideration should be made more with regards to the present situation in the society and the people living in it, than with customs. The jaidbynriew resides with the people living today and those who would be born tomorrow, not with the dead. Those who have passed away from this world have joined with the common sea of the souls of ‘u khunbynriew’ (human race), bearing no specific race or tribe; and they need no democratic constitution or traditional customs. If half of our time, wealth and energy be expended to placate the spirits of the ancestors then we are doomed in this modern world. In conclusion, I would like to point out that besides the protection of the traditions of the weaker sections; the Word of the state also says that fundamental rights and gender justice among the citizens should be seriously considered.