By Kenneth Nongsiej
The Constitution of India, one of the lengthiest constitutions in the world, reflects the country’s commitment to addressing the needs of its diverse population. Among its provisions, special attention is given to safeguarding the unique identities and rights of various regional and tribal communities. This is especially evident in the North-Eastern states, home to diverse ethnic groups with distinct cultural, social, and political characteristics.
Two key constitutional provisions, Article 371A, related to Nagaland, and the Sixth Schedule, which applies to tribal areas in Assam, Meghalaya, Tripura, and Mizoram, aim to protect the rights and identities of these communities. In Meghalaya, debates have recently centred around which of these two provisions better serves to protect the state’s Indigenous tribes or the Jaitbynriew.
Special Provisions for Nagaland
Added to the Constitution in 1962, Article 371A grants Nagaland significant autonomy. It gives the Nagaland Legislative Assembly the power to make decisions on key areas such as religious or social practices, Naga customary law, land ownership, and the administration of justice based on tribal customs. Central laws passed by the Indian Parliament can only be applied in Nagaland if the state assembly agrees through a resolution passed by the legislature.
This provision ensures that the state can govern according to its customs and traditions, preserving its cultural heritage with minimal interference from the central government.
Autonomous Governance for the Schedules areas
The Sixth Schedule, adopted in 1949 by the Constituent Assembly, establishes a dual governance system through autonomous district councils (ADCs). This framework operates on two levels: the state government and the autonomous councils, allowing for local self-governance. The ADCs are empowered with legislative, executive, and judicial powers and can make or codify laws that are related to social customs, land ownership, marriage, and inheritance, but they remain subject to the oversight of the state’s governor. Central laws can be applied at the discretion of the President of India. However, this system has led to some uncertainty in Meghalaya regarding the registration of migrant workers, with questions arising about whether they should register with the State’s Labour Department or the Khasi Hills Autonomous Councils. These councils hold legislative, executive, and judicial powers over local matters like social customs, inheritance of property, marriage, and divorce. However, they remain under the oversight of the state’s governor, and central laws can be applied in these areas at the discretion of the President of India.
Status of the Land Transfer Act if the Sixth Schedule is Replaced with Article 371A
The Meghalaya Transfer of Land (Regulation) Act, 1971, is a key piece of legislation designed to safeguard the land interests of the tribes in Meghalaya. This Act was enacted by the State Legislature, rather than by the Autonomous District Councils (ADCs). A relevant question arises as to whether this Land Transfer Act would remain in effect if the Sixth Schedule were replaced by Article 371A of the Constitution.
The answer is affirmative. Even if Article 371A were to replace the Sixth Schedule, the State Legislature would retain its authority under the Act to regulate land ownership and transfer. Furthermore, the State government would continue to have the ability to enact legislation that reinforces and protects the traditional land systems of the tribal communities within the state. This ensures that the unique land rights and practices of Meghalaya’s tribes are preserved, regardless of constitutional adjustments.
Applicability of
Central Laws
One key difference between Article 371A and the Sixth Schedule is how central laws are applied. For example, in Nagaland, the Mines and Minerals (Development and Regulation) Act, 1957 does not apply due to protections for Naga land and resources. However, this Act is applicable in the Sixth Schedule areas, such as in Meghalaya, where the state government and ADCs do not have the power to exempt themselves from central laws. Traditional mining methods, which are important to local communities, lack legislative protection in these areas.
Similarly, Nagaland has the power to decide whether to implement new criminal laws like the Bharatiya Nagarik Suraksha Sanhita (BNSS), the revised Criminal Procedure Code, through a resolution of its state assembly. In contrast, in Sixth Schedule areas, the BNSS is generally applied in spirit, though the legal system remains complex with some cases tried by local ADC courts and others by regular courts.
Amending the Provisions
The procedure for amending Article 371A and the Sixth Schedule are identical, requiring a special majority under Article 368 of the Constitution of India. Amendments must be passed by both houses of Parliament with a majority of the total membership of each house, and by at least two-thirds of the members present and voting. To amend these provisions, an amendment bill must be introduced in either house of Parliament, debated, and passed by the required majority in each house. Once both houses pass the bill, it is sent to the President for assent. Currently, amending or repealing these provisions would be challenging due to the NDA government’s position. However, if the government had secured four hundred seats in Parliament and a majority in the Rajya Sabha, such changes would have been possible.
Key Differences in
Autonomy
While both Article 371A and the Sixth Schedule aim to protect tribal identities and provide autonomy, they differ significantly in scope. Article 371A offers Nagaland far greater independence, with the state government holding significant powers to decide the application of central laws. This ensures a high degree of self-governance, allowing Nagaland to preserve its cultural and social traditions.
On the other hand, the Sixth Schedule provides a more regulated framework. ADCs manage local governance, but their powers are subject to the oversight of both the centre and state the former through the governor and latter the state governments. While ADCs can create laws on local matters, the authority to apply or exempt central laws remains with the President, making it a more controlled form of autonomy.
Both Article 371A and the Sixth Schedule play crucial roles in protecting and promoting the rights of Indigenous communities in the North-Eastern states. While Article 371A grants Nagaland greater independence, the Sixth Schedule provides a structured form of local governance with more centralized oversight.
In Meghalaya, the debate continues over whether Article 371A or the Sixth Schedule better serves to protect the Jaitbynriew. Given the central government’s reluctance to extend provisions like the Inner Line Permit (ILP) to Meghalaya, securing the level of autonomy enjoyed by Nagaland could be challenging. However, with strong leadership and political will, it is possible for the state to push for greater self-governance.
Ultimately, the Constitution derives its power from “We the People,” and it is the people of Meghalaya who will shape the future of governance in the state. Empowering local leaders and advocating for these changes may pave the way for greater autonomy in protecting the state’s indigenous heritage.