By Erwin K Syiem Sutnga
As the Khasi and Jaintia Hills gear up for elections to the Khasi Hills Autonomous District Council (KHADC) and the Jaintia Hills Autonomous District Council (JHADC), political debates have intensified. A recurring refrain in these discussions is the call for special constitutional provisions for Meghalaya under Article 371. Yet, before embarking on this potentially disruptive path, it is instructive to examine the experiences of Nagaland under Article 371A and Mizoram under Article 371G—experiences that have not only stirred political and administrative challenges but have also generated a rich tapestry of judicial interpretations in both the High Courts and the Supreme Court.
Nagaland and Article 371A: Judicial Lessons from a Struggle for Autonomy.
Resource Management Conflicts and Judicial Oversight
At the heart of Article 371A, particularly Clause IV, is the promise of state control over land and natural resources. Intended as a shield for the Naga people’s interests, its implementation has faced significant hurdles. In a series of disputes, the Nagaland issue reached the apex Court of the judiciary. For instance, in the landmark State of Nagaland v. Union of India (2010) case—often referred to as the “Oil Exploration Dispute”—the Supreme Court addressed Nagaland’s attempt to assert exclusive authority over oil and gas exploration. The resolution passed by the Nagaland Legislative Assembly, invoking Clause IV to bypass central regulations such as the Mines and Minerals (Development and Regulation) Act, 1957, was met with stern opposition from the central government. The Court ruled that matters listed under Entry 53 of the Union List, which covers mineral resources, remain under the purview of Parliament. This decision not only stalled oil exploration projects but also underscored a fundamental judicial observation: while Article 371A is designed to confer autonomy, its provisions are not immune to overarching Union legislation.
Symbolic Autonomy Versus Legislative Inadequacy:
Legal commentators, including Advisor to the Chief Minister of Nagaland, Mr. Imkong L. Imchen, have argued that the autonomy envisioned in Clause IV remains largely symbolic. Various High Court opinions have noted that the Nagaland Legislative Assembly lacks the legislative power to transform this symbolic autonomy into effective governance. A Morung Express opinion poll further highlighted these concerns, with around 70% of Nagaland respondents expressing the view that Article 371A, particularly Clause IV, has failed to safeguard their interests in resource ownership and management. This widespread public skepticism reinforces the judicial caution that mere constitutional guarantees, without enforceable mechanisms, may not suffice to protect resource rights or ensure effective state governance.
Mizoram and Article 371G:
When Traditional Governance clashes with Modern Constitutional Mandates: Navigating the Complex Terrain of Resource Control and Administrative Autonomy
Mizoram’s special status under Article 371G was meant to safeguard its unique cultural and administrative practices. Yet, the Mizoram experience reveals a similar pattern of challenges. In the notable Mizoram Tribal Council v. State of Mizoram (2018) ruling, the Mizoram High Court examined the friction between traditional governance and the imposition of modern administrative frameworks—most prominently in the context of municipal elections. The decision illuminated the conflict between constitutional mandates for urban governance and the state’s cherished traditional institutions, which have long managed local affairs. The judiciary stressed that while democratic norms must be upheld, they should not erode indigenous governance structures.
Economic Dependencies and Administrative Delays
Judicial findings in subsequent Supreme Court decisions have reiterated that despite Article 371G’s assurances, Mizoram’s control over its natural resources remains circumscribed by Union laws—especially those under Entry 53. The central government’s retained authority has hampered independent economic growth and infrastructure development. Investors have been deterred by legal ambiguities surrounding resource management policies, and financial dependence on central grants—exacerbated by delayed projects due to regulatory conflicts—has reinforced the view that Mizoram’s special status is more symbolic than substantive.
Why Introducing Article 371 in Meghalaya Could Create More Problems Than It Solves.
Overlapping Jurisdictions and Administrative Inefficiencies:
Meghalaya already benefits from the autonomy accorded under the Sixth Schedule, which has empowered Autonomous District Councils (ADCs) the KHADC, GHADC, and JHADC to legislate on tribal identity, land, and culture. Injecting Article 371 into this framework could lead to overlapping jurisdictions and administrative friction. Lessons from Nagaland’s resource disputes—where vague provisions led to protracted conflicts between state and Union laws—warn against such legislative redundancy.
Marginalization of Traditional Institutions and Political Manipulation.
Judicial observations in Nagaland and Mizoram have repeatedly pointed to the risk of centralizing power in a manner that marginalizes local governance. In Meghalaya, traditional tribal institutions—such as the Syiems, Nokmas, Dollois, and the Headman or Rangbah Shnong and village Dorbar system—are not only cultural cornerstones but also essential to community cohesion. Historical judicial skepticism suggests that any move to centralize authority, similar to the experiences under Articles 371A and 371G, could open the door to political manipulation and corruption, undermining the very fabric of tribal self-rule.
Inter-Tribal Tensions and Resource Ownership Ambiguities
Meghalaya’s complex mosaic of tribal communities, comprising Khasis, Jaintias, and Garos, and other smaller tribes necessitates a governance framework that respects their unique identities. The ambiguities seen in Nagaland’s Clause IV—where unclear resource ownership led to economic stagnation and social unrest—should serve as a stark warning. Introducing a similar framework in Meghalaya could spur inter-tribal competition for resources, sowing the seeds of political and social discord.
A Case for Strengthening the Sixth Schedule: Shortcomings of the Sixth Schedule
While the Sixth Schedule was designed to protect the autonomy of tribal areas, it is not without its challenges. Some notable shortcomings include:
Ambiguous Demarcation of Powers: The division of authority between ADCs and state governments can be unclear, leading to jurisdictional conflicts and administrative delays.
Limited Financial Autonomy: ADCs often depend heavily on state and central grants due to inadequate revenue-generating provisions, hindering their ability to fund local development independently.
Insufficient Mechanisms for Modern Governance: Although the Schedule preserves traditional systems, it sometimes falls short in integrating modern administrative practices. This can result in a governance model that struggles to meet contemporary socio-economic demands, compounded by allegations of misuse of financial resources and corruption that call for transparent oversight.
Vulnerability to Central and State Oversight: The lack of robust safeguards can make ADCs susceptible to interventions by state or Union authorities, potentially diluting their autonomy and the protection of indigenous rights.
Enhancing the Sixth Schedule: A Tailored Approach for Meghalaya
Rather than embracing Article 371, a more tailored approach for Meghalaya would be to fortify the Sixth Schedule by incorporating dedicated, state-specific provisions within a State Chapter. Judicial discourse across various cases has underscored that clear legislative and administrative frameworks are crucial for harmonizing modern governance with traditional systems. Enhancements could include:
Clarifying Power Boundaries: Clearly demarcate the legislative and executive powers of ADCs vis-à-vis the state government to prevent overlapping authorities and administrative gridlock. This has become a clear interpretation of the Supreme Court in Regional Provident Fund Commissioner versus The Shillong City Bus Syndicate where the law making powers of the Autonomous District Councils under Para 3 are declared sacrosanct.
Expanding Financial Autonomy and Checks & Balances: Introduce robust fiscal mechanisms that empower ADCs to generate and manage their own revenues through direct funding—leveraging social, economic, human, and natural resources—to reduce dependence on state grants.
Integrating Modern Governance Practices: Update administrative structures to incorporate contemporary practices while respecting traditional customs, ensuring efficient service delivery and economic development.
Strengthening Institutional Safeguards: Embed stronger protections against undue external interference to preserve the autonomy and integrity of indigenous grassroots governance structures.
Additionally, a State Chapter in the Sixth Schedule could address:
Constitutional Recognition of the Matrilineal System: Codify the matrilineal inheritance tradition to safeguard rights in property and governance.
Codification of Community Land Rights: Legally enshrine community ownership to protect against exploitation by external forces.
Empowerment of Traditional Institutions: Provide financial and administrative support to bodies like the Syiems, Nokmas, and Dollois Rangbah Shnongs (including Waheh Chnong, Sordar Shnong, and Myntri Shnong) and village Dorbar Shnong.
Harmonized Development Strategies: Establish cooperative frameworks between ADCs and the state government to ensure that development projects are sensitive to tribal autonomy and development needs.
Revising Governing Provisions: Amend Para 12A(b) to restore powers from the President of India to the Governor, requiring the Governor’s consultation with local institutions before implementing central laws. This should also include the removal of Para 12A(a) in light of the Supreme Court’s judgment in Regional Provident Fund Commissioner v. Shillong City Bus Syndicate, which affirmed the sanctity of the law-making powers of the Autonomous District Councils under Para 3 of the Sixth Schedule.
Assessing the Tribal Interest: A Call for a Value-Added Study on Implementing Article 371 in Meghalaya.
Overview
There is an urgent need to evaluate whether extending Article 371’s provisions to areas such as Police Bazar, Jail Road, Oakland, European Ward, and all government lands—historically Khasi tribal territories—serves the best interests of the tribal community in Meghalaya. A focused value-added (VA) study can help guide policymakers in this complex matter.
Key Considerations
Historical and Cultural Significance:
These urban and government lands have deep cultural roots as ancestral Khasi territories. Recognizing their tribal heritage through Article 371 could safeguard traditional customs and rights despite urbanization.
Enhanced Local Autonomy:
Granting Article 371 protections to these areas could empower local decision-making, ensuring that development policies reflect the Khasi- Jaintia community’s unique needs and preserve their traditional governance structures.
Resource Management:
A comprehensive study could determine how best to align modern land use policies with traditional claims, thereby reducing conflicts and ensuring equitable resource management.
Study Objectives
A focused value-added study should:
Document Historical Land Use: Analyze the transformation of these lands from tribal territories to urbanized areas, establishing a clear historical context.
Examine Legal Frameworks: Evaluate how current laws interact with tribal rights and recommend necessary amendments.
Analyze Socio-Economic Impacts: Assess both the cultural and economic implications of implementing Article 371 in these areas.
Gather stakeholder inputs: Involve Khasi- Jaintia community leaders, urban residents, and government officials to capture diverse perspectives.
Key takeaways
A concise, value-added study is essential to decide if extending Article 371 to non-tribal areas in Meghalaya truly serves tribal interests. Such a study would provide critical insights to harmonize traditional rights with modern urban development, ensuring that any policy shift respects the heritage and future prosperity of the Khasi community.
The future roadmap:
The fervent demand for Article 371 in Meghalaya from some quarters springs from genuine concerns about preserving tribal identity and resources albeit a demand not well reasoned or researched. Judicial experiences and rulings from Nagaland and Mizoram—such as State of Nagaland v. Union of India (2010) and Mizoram Tribal Council v. State of Mizoram (2018)—make it clear that vague or overlapping constitutional provisions often lead to administrative inefficiencies, legal ambiguities, and deep-seated socio-political divisions. The Morung Express opinion poll, with approximately 70% of Naga respondents in Nagaland expressing dissatisfaction with the current framework under Article 371A, further underscores these concerns. Instead of adopting Article 371, a strengthened Sixth Schedule, customized to Meghalaya’s unique cultural and administrative landscape in a separate State Chapter promises a more effective and harmonious way forward. Ensuring clarity and operational efficacy in governance is paramount—a lesson Meghalaya would do well to heed as it charts its own future.