Strengthening the Sixth Schedule
By Erwin K. Syiem Sutnga
The Sixth Schedule of the Indian Constitution provides for the administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram, as outlined by Article 244(2). However, it has become evident that the existing provisions are inadequate to address the specific needs of matrilineal tribal societies in Meghalaya, such as the Khasi, Jaintia, and Garo tribes. These communities face significant challenges in preserving their cultural identity, traditional grassroots governance systems, and land rights in the absence of explicit constitutional recognition. The ban on felling of timber by the Supreme Court of India in 1996 and the Coal mining ban imposed by the National Green Tribunal in Meghalaya since 2014 are two key dynamics which reflect the inadequacies of the Sixth Schedule to react to even legal forces impinging on the rights of Meghalaya’s matrilineal tribes. Key issues like livelihood rights and private land rights when overridden by environmental laws lose out because the safeguard mechanism provided by Para 12 A(b) which is the mechanism to reconcile conflicts of Meghalaya’s state laws and laws of Parliament with prevailing customary and traditional practices cannot be implemented because of procedural bottlenecks like requiring Presidential notification. Combine this with state misuse of laws and procedures often blurred by political exigencies and vested interests make for fertile breeding ground for corruption and misuse of power. This is one bottleneck which needs to be removed by returning this power back to the Governor of the State of Meghalaya as it was there prior to statehood in 1972. A dedicated state chapter for Meghalaya within the Sixth Schedule is essential to address these concerns and ensure the survival of the Khasi, Jaintia and Garo tribes’ unique matrilineal rights and traditions. Laws made for patriarchal systems have to be modified to nurture and protect the growth of the matrilineal system of Meghalaya while ensuring life practices and livelihood that do no harm but are sustainable in the best traditions of the tribal relationship with the earth. It is true that many traditional values have been eroded or convoluted by vested interpretations which are a constitutional provision of the core matrilineal value system comprising of the prevailing customs and practices especially of the traditional grass-roots governance systems.
The Need for Amendment
The issue of amending the Sixth Schedule has been raised multiple times, most recently with the Constitution (One Hundred and Twenty-Fifth Amendment) Bill, 2019, introduced in the Rajya Sabha on 6th February 2019. The bill aimed to enhance the autonomy of village and municipal councils, increase representation for women, increase the elected and nominated seats, provisions related to setting up of a State Finance Commission and strengthen administrative frameworks for a better delivery service of development and progress in the tribal areas of the District and Territorial Councils of the four states covered by Article 244(2). The bill expired with the holding of the General Elections to Parliament later that year. However, it failed to directly address the needs of the matrilineal structure unique to Meghalaya. The absence of the term “matrilineal” from the Sixth Schedule is a glaring omission, particularly because the Sixth Schedule was designed to protect these tribes. The exclusion leaves the Khasi, Jaintia, and Garo tribes vulnerable to the encroachment of patriarchal systems and challenges to their identity, ancient cultural and traditional grassroot governance systems.
Challenges from New Legislation
Recent legislative changes, such as the Bharatiya Nagarik Suraksha Sanhita (2023), which replaces the Criminal Procedure Code (1973), and the Bharatiya Nyaya Sanhita 2023, highlight the urgency for amendments to the Sixth Schedule. Para 5 (3) of the Sixth Schedule provides that the Civil and Criminal Procedure Codes do not apply in autonomous districts unless expressly notified. Para 4 provides for the investment of powers of the District Council Courts under the Indian Penal Code. This creates a potential conflict with the newly implemented Bharatiya Nyaya Sanhita (2023), which replaces the Indian Penal Code (IPC). Without proper amendments, there will be significant chaos and confusion in administering justice in the tribal areas of Meghalaya. Moreover, a long-standing constitutional anomaly still exists in the Proviso to Paragraph 3 of the Sixth Schedule, which allows for “compulsory acquisition” of tribal land, even though Article 31, which dealt with such provisions, was repealed by the Forty-fourth Amendment in 1978. This is particularly concerning given the protections under the Right to Fair Compensation and Transparency in Land Acquisition Act, 2013, which mandates that land acquisition in Scheduled Areas meaning Tribal Areas in Meghalaya must be a last resort.
Incorporating Principles of Article 371A
In addition to amendments to the Sixth Schedule, the principles of Article 371A—which grants special protection to Nagaland—should also be incorporated into Meghalaya’s state chapter. Article 371A protects Nagaland’s social, cultural, and customary practices, ensuring that no act of Parliament affecting religion, social practices, or land ownership applies to Nagaland without the approval of its Legislative Assembly. Similar protections should be extended to Meghalaya, ensuring that laws of Parliament do not override the traditional matrilineal customs and practices of the Khasi, Jaintia, and Garo tribes. Coupled with the mechanism of Para 12 A (b) this will prove a powerful constitutional mechanism once the power is returned to the Governor of Meghalaya. By incorporating these principles into Meghalaya’s state chapter, the indigenous tribes will have the constitutional safeguards necessary to protect their way of life, especially in the areas of land ownership, livelihood, traditional governance, and cultural practices as well as traditional environmental maintenance and protection.
Need for a Separate State Chapter
A separate state chapter is essential to safeguard Meghalaya’s unique traditional governance systems, such as the Dorbar Shnong (village councils), Dorbar Raid, and Dorbar Hima, which are crucial for the Khasi and Jaintia people. In Garo Hills, the Nokma system plays a similar role in village and clan land administration. These grassroots governance systems are vital for maintaining the tribes’ matrilineal traditions and communal land rights. This also includes the traditional Kur or Clan systems which are so integral to the matrilineal system.
Challenges posed by demographic influx
The need for a state chapter becomes even more urgent considering the demographic pressures facing Meghalaya. Right to Information (RTI) data from the Meghalaya Department of Economics and Statistics indicates that the non-tribal population in the Khasi and Jaintia Hills grew from about 84,000 in 1952 to over 460,000 by 2011. The trend is generally towards an upward trend. This demographic shift, driven by migration and economic opportunities, threatens the tribal way of life. It has also created reactionary situations where organisations like the Khasi Students Union frustrated by the perceived inadequate approach of the Government of Meghalaya have resorted to their own implementation of an “Inner Line” system mainly by social action resulting in ethnic tension and adverse effect on the economic pace of the state since migrant labourers have been targeted. Moreover, the recent ethnic violence in Manipur and political changes in Bangladesh underscore the vulnerability of Meghalaya’s tribal population to external pressures. While the Citizenship Amendment Act (CAA) of 2019 exempts tribal areas under the Autonomous District Councils (ADCs) of Meghalaya, the lack of constitutional recognition for traditional governance institutions like the Dorbar Shnong weakens the ADCs’ ability to address issues of migration and demographic change. A state chapter that explicitly recognizes matrilineal systems and empowers local governance bodies is crucial to address these challenges.
Historical Context and Constitutional Gaps
The Sixth Schedule was designed to protect the traditional systems of land tenure, customs, trade and governance in tribal areas. However, historical oversights, such as the failure of the Federation of Khasi States in 1949 to secure constitutional protection for customary land rights, traditions and customary practices have created significant vulnerabilities. Additionally, many clauses of the Instrument of Accession and Annexed Agreement signed by the 25 Khasi States in 1948 remains unincorporated into the Constitution, leaving tribal land and governance systems inadequately protected. A separate state chapter for Meghalaya would correct these historical oversights and provide a comprehensive legal framework for preserving tribal identity, land rights, and cultural practices. Incorporating the principles of Article 371A would further ensure that Meghalaya’s tribes retain autonomy over their social, cultural, and land-related matters, in line with their customary laws.
Protecting Meghalaya’s Matrilineal System
At the core of the argument for a state chapter is the need to protect the matrilineal system, which forms the foundation of Khasi, Jaintia, and Garo identity. The right to land, deeply tied to matrilineal inheritance and identity, is critical to preserving communal ownership, respecting family and clan relationships, rights of women and children. The Khasi and Jaintia tribal moral principles of “Tip briew, Tip Blei” (know man, know God), “Tip Kur, Tip Kha” (know your clan, know your paternal relations), and “Ban Kamai ia ka Hok” (earn an honest living) represent the ethical values of these tribes and should be enshrined in the Sixth Schedule as guiding principles for future generations and be the way forward for India and the world.
Conclusion
A state chapter for Meghalaya within the Sixth Schedule is not just a legal necessity but an identity and cultural imperative. It will provide constitutional safeguards for the matrilineal systems of the Khasi, Jaintia, and Garo tribes while empowering their traditional governance institutions to adapt to modern challenges empowered by the financial and administrative changes envisaged in the 125th Constitutional Amendment Bill, 2019. Incorporating the principles of Article 371A will ensure that the unique social, cultural, traditional grassroot governance system and land rights of Meghalaya’s indigenous tribes are protected, preserving their identity and autonomy in the face of external pressures, demographic influx and assault from the dominant patrilineal and patriarchal systems.
(The writer is a practising advocate)