By Fabian Lyngdoh
Many politicians, academicians, social leaders and practising lawyers express discontent with Paragraph 12A in the Sixth Schedule to the Constitution of India, in its applicability to the State of Meghalaya. Even the youth who can hardly understand what the Sixth Schedule is all about, echo the demand for the deletion of Para12A from the Sixth Schedule.It has been argued that by giving over-riding powers to State Government laws, over the laws made by the District Councils, the provision has eroded the autonomy of the Councils even on subjects entrusted to them. Some political parties even made it an issue in their election manifestos. Even the S.K. Dutta Commission of Inquiry on Autonomous District Administration in the State of Meghalaya recommended for the deletion of Paragraph 12A.
Formerly, all the Tribal Areas specified in paragraph 20 of the Sixth Schedule were Autonomous Districts governed by Autonomous Councils under the State of Assam. But the leaders of these Autonomous Districts were dissatisfied as they felt that the Autonomous Councils under the Sixth Schedule could not fully satisfy the aspirations of the tribal people.So the movement for the separation of the Tribal Areas from Assam, and the creation of a separate Hills State for the Tribals started. But ultimately, the Assam Re-Organisation (Meghalaya) Act, 1969 created the Autonomous State of Meghalaya covering only the United Khasi Jaintia, and the Garo Hills Autonomous Districts. But again, the leaders of the Hills State movement were not satisfied with an autonomous State within the State of Assam. Hence they demanded for a full-fledged State. Their persistent demand saw the light of day when The North-Eastern Areas (Re-organisation) Act, 1971 was passed by the Parliament and the full-fledged State of Meghalaya was created.
Article 244 (2) of the Constitution, deals with the administration of Tribal Areas in North East India. In 1969, Article 224A was inserted in the Constitution to confer the necessary legislative powers on Parliament to enact a law for constituting the Autonomous State of Meghalaya which covers the Sixth Schedule areas. But no special Article was provided for Meghalaya in the Constitution, like Article 371 for the States of Nagaland and Mizoram.The State of Meghalaya was thus presumed to be a Tribal State and exists under the constitutional protection of the Sixth Schedule besides its plenary power to make laws as a full-fledged State in the Union of India.
Paragraph 12 of the Sixth Schedule provides that no Act of the Legislature of the State in respect of any matters specified in Paragraph 3 of the Sixth Schedule shall apply to any autonomous district in the State unless the District Council, by public notification, so directs, subject to such exceptions or modifications as it thinks fit. However, except clauses (g) the appointment of Chiefs or Headmen; (h) the inheritance of property, and (j) social customs, of sub-paragraph (1), all the subjects provided in the Paragraph 3 are also included in the State List of the 7th Schedule to the Constitution. In the 7th Schedule the State Legislature is authorised to make laws over 60 items under the State List and 52 items under the Concurrent List. On the other hand, the Sixth Schedule protects only the collective cultural rights of a community, but it is not beyond the scope of fundamental human rights as provided in the Constitution of India. Always, Fundamental Human Rights stand above Indigenous Peoples’ Rights. Former Chief Justice of India, M. Hidayatullah’s statement that the Sixth Schedule is “A Constitution within a Constitution” can be interpreted in this light. The Constitution of India covers everything from fundamental human rights to reserved cultural rights; but the Sixth Schedule concerns only with tribe-specific cultural rights. The Sixth Schedule is within the Constitution, and it cannot stand alone apart from the Constitution. Likewise, an autonomous district can only exist within a State; it cannot exist as a stand-alone territorial entity apart from the State. If it stands alone as a territorial entity apart from the State, then it becomes a Union Territory. Hence, the District Council cannot exercise powers as a Union Territory’s Legislature within a State.The District Councils are concerned only with reserved cultural rights, but the Legislature of Meghalaya is concerned with reserved cultural rights as well as with fundamental human rights. If the District Council makes a law that exceeds its mandate or intrudes into the domain of fundamental human rights, then it is the responsibility of the State Legislature to set things right.
For this reason, Paragraph 12A was inserted in the Sixth Schedule by the Act of 1971, which says that if any provision of a law made by the District Council in the State of Meghalaya with respect to any matter specified in sub-paragraph (1) of paragraph 3, or any provision of any regulation made by the District Council under paragraph 8 or paragraph 10 of the Sixth Schedule, is repugnant to any provision of a law made by the Legislature of the State with respect to that matter, then the law made by the District Council shall to the extent of repugnancy, be void and the law made by the Legislature of the State shall prevail.
Paragraph 12A is not applicable in the State of Assam because the populations of Karbis, Dimasas, and Bodos, add up to a very small percentage of the total population of Assam. According to Census 2011, the population of all tribal people in Assam, including the above three tribes, is only 12.45 per cent of the total population.Moreover, there are only 16 reserved MLA seats for scheduled tribes in the Assam legislative Assembly out of 126 members. There are only four MLAs representing the Karbi Anglong Autonomous District, and only one MLA representing the Dima Hasao Autonomous District in the Assam Legislative Assembly. In this scenario, there is likelihood that the Autonomous territorial Councils which represent only 12.45 per cent tribals might be oppressed by the State Legislature which mainly represents the majority non-tribals in Assam. It is for this reason that with regard to the Autonomous Territorial Councils in Assam, the Governor has more discretionary powers because his position is more like the representative of the President of India to protect the interests of tribals from the oppressive actions of the State Legislature.In Assam, the laws made by the Autonomous Territorial Councils relating to any matter specified in List III of the 7th Schedule, the paragraph 3A and paragraph 3B of the Sixth Schedule, require the Governor to reserve such laws for the consideration of the President. For laws which do not relate to the said List III, the Governor grants assent in his personal discretion in view of the provisions contained in paragraph 20 BA of the Sixth Schedule, though in doing so he is required to consult the Council of Ministers.
On the other hand the tribal population in Meghalaya constitutes 86.15 per cent of the population, and in the Meghalaya Legislative Assembly of 60 members, especially in the Khasi and Jaintia Hills, practically all the MLA seats are occupied by indigenous tribals. Hence,considering the ground realities, the Governor of Meghalaya does not stand as the representative of the President with regards to the District Councils, and he has no discretionary powers to protect the interests of the District Councils which represent the 86.15 per cent tribals from the oppressive actions of the State Legislature which also represents the same 86.15 per cent tribals; the concept itself is absurd. Thus the position of the Governor with regard to the Autonomous Districts in Meghalaya is more that of the head of the State who has to act on the aid and advice of the Council of Ministers of the State as provided in Article 163(1) of the Constitution.
If paragraph 12A was not inserted in the Sixth Schedule, then it would mean that the Meghalaya State Legislature has no authority to make laws on a wide range of subjects without the approval of the District Councils, or that the tribal MLAs cannot make laws on a wide range of subjects without the approval of the tribal MDCs. The leaders of the Hills State movement understood the inadequacy of the District Councils for protecting the tribes, and hence fought for a full-fledged State. It is said that when Meghalaya was created the leaders discussed whether to abolish or to retain the District Councils. Captain Williamson Sangma suggested that the District Councils would be retained as training grounds for those who aspire to be MLAs to the State Legislature. But now it seems that the people are afraid of the powers of their own State, and the District Councils want independent right to make laws directly under the Central Government.The crux of the problem does not lie in any discrepancy of the Law, but lies deep in the collective feeling of insecurity generated by factors beyond the scope of the legislation process. This sense of insecurity is fanned, magnified and kept alive by the self interests of some section of the people. Moreover, as the S.K. Dutta Commission of Inquiry has reported, the District Councils seem to devote their time and thought to development rather than to the enactment of laws for the protection of healthy customs and usages. So the conflict between the State’s laws and the District Councils’ laws are more on matters of development rather than on customs and usages.
What do the District Councils really want? Do they want to be under Assam again as Autonomous Territorial Councils sans paragraph 12A? Do they want the Autonomous Districts to be transformed into Union Territories directly under the Parliament? Isn’t it better to be Autonomous District Councils of the Khasis-Jaintias and Garos under a State ruled by Khasi-Jaintias and Garos in spite of the discrepancy? The answers are in the questions.
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