By Kitdor H. Blah
It is unfortunate that such an important subject as Autonomy has become a means for political propaganda and one-upmanship in light of the elections to the Autonomous District Councils. Autonomy is the subject of both Article 371 and the Sixth Schedule. The purpose of this article is to take a look at the issue of Article 371 & the Sixth Schedule from the point of view of the historical development of autonomy in these regions. To this end, I invite the readers to look back to that very brief period in the history of the Khasi, Jaintia & Garo Hills, between December 29, 1969 and January 21, 1972. While the latter date refers to the day on which the state of Meghalaya was formed, the former date refers to the date on which the Assam Reorganisation Act, 1969, was enacted which provided for the formation of the Autonomous State of Meghalaya within Assam. This Act came into effect on January 12, 1970. This was an important date in the history of self-government and autonomy in these hills.
The tribal areas known as the Autonomous Districts of Khasi, Jaintia and Garo Hills, were constituted into the Autonomous State of Meghalaya on January 12, 1970. The 1969 act brought important changes to the Sixth Schedule. One of the changes was that the legislative autonomy that the ADC’s enjoyed under paragraph 12(1)(a) of the Sixth Schedule was curtailed to a certain extent, with the insertion of paragraph 12A(1)(a) which allowed for the Legislature of the Autonomous State to overrule the provisions of any acts passed by the ADC’s in relation to certain subjects under para 3 of the Sixth Schedule such as management of forest area, use of canal or water course for agriculture, and village/town administration. Moreover, the Act also inserted para 12(1)(b) which allowed even for the Legislature of Assam itself to overrule provisions of acts passed by the ADC’s in relation to management of forest area and use of canal or water course. After the State of Meghalaya was formed on 21st January, 1972, via the North Eastern Areas Reorganisation Act, 1971, para 12A was further amended by inserting the new para 12A(a) which allowed the Legislature of the State of Meghalaya to overrule the provisions of any acts passed by the ADC’s in relation to all the subjects under para 3, thus curtailing to a full extent, the legislative autonomy of the ADC’s.
At this point, I invite the readers to look at the autonomy of these Tribal Areas in two ways, i.e. Positive Autonomy (autonomy in making laws) and Negative Autonomy (protection from laws). What we have seen above is the history of the positive autonomy of these areas. Let us now look at the history of the negative autonomy of these areas, which is more relevant to Article 371, as this Article is not concerned with legislative powers but with protection from laws. The history of negative autonomy is a much longer one, preceding the Constitution and the Sixth Schedule. The British Government found that there were areas that were not part of the mainstream of political and cultural life of the rest of India, and it was important to regulate them by special regulations, as they were not subject to the general acts. One of these areas is the present day North East region which was regulated by the Bengal Eastern Frontier Regulation, 1873. The British Government brought all such areas together under a general Act called the Scheduled Districts Act, 1874, to provide the local government of these areas the authority to grant them negative autonomy, i.e. to declare what enactments are in force or not in force in such districts, or to extend any enactments to such districts with such modifications and restrictions as seems fit.
This negative autonomy was continued under the Government of India Act, 1919. This Act provided that its provisions would not apply to the ‘backward tracts’ without exceptions and modifications and also that any Act of the Indian Legislature shall not apply to these areas, or shall apply subject to exceptions and modifications, as notified by the Governor-General. These ‘backward tracts’ included most of the Scheduled Districts, including the Khasi, Jaintia & Garo Hills. When the Government of India Act, 1935, was passed, this negative autonomy was further continued. The 1935 Act provided that no Act of the Federal Legislature or of the Provincial Legislature shall apply to the “excluded and partially excluded areas” unless the Governor so directs, subject to exceptions and modifications as notified by him. These partially excluded areas included the Khasi, Jaintia & Garo Hills.
When the Republic of India was constituted, this negative autonomy was continued under the Sixth Schedule of the Constitution. Para 12(1)(b) of the Sixth Schedule provided that the Governor may direct that any act of Parliament or of the Legislature of the state (Assam) shall not apply to these autonomous districts, or shall apply subject to such modifications or exceptions as may be specified.
As with the positive or legislative autonomy, the Assam Reorganisation Act, 1969 also brought changes to the negative autonomy of the Autonomous Districts. The 1969 Act inserted para 12A(5) which made Para 12(1)(b) redundant. In place of para 12(1)(b), the 1969 Act inserted para 12A(4) which provided that the Governor may direct that any act of the Legislature of Assam, and the President may direct that any act of Parliament, shall not apply to the Autonomous State of Meghalaya, or shall apply, subject to such modifications and exceptions as may be specified. Thus, at this juncture in history, the negative autonomy was provided to the Autonomous State, and no longer to the Autonomous Districts. The negative autonomy of the Autonomous Districts had become redundant because the Autonomous State was constituted of the tribal areas known as the Autonomous Districts of the Khasi, Jaintia & Garo Hills. Of course, after the State of Meghalaya was formed on 21st January, 1972, via the North Eastern Areas Reorganisation Act, 1971, this para 12A was further amended by inserting the new para 12A(b) to again provide negative autonomy to the Autonomous Districts, but only with respect to acts passed by Parliament, whereby the President may direct that any act of Parliament shall not apply to the Autonomous Districts or shall apply subject to exceptions and modifications.
This brief history of autonomy in these Khasi, Jaintia & Garo Hills, can provide us with a practical approach to the real issue of Article 371 and Sixth Schedule, which is autonomy, both positive autonomy and negative autonomy. This brief history has shown us that the positive autonomy of the ADC’s was curtailed to an extent, with the formation of the Autonomous State, and it has been curtailed to the full extent, with the formation of the State of Meghalaya. Of course, this also means that the negative autonomy of the Autonomous Districts with respect to the State of Meghalaya, has become redundant.
So far, no political party or politician has advocated against this, and the logic provided by some political leaders is that this was necessary to avoid having parallel authorities in the state as this would only bring misery to the people if such parallel authorities (say Legislature and District Council) are at logger heads. So, positive autonomy is not the issue in contention right now, and neither is negative autonomy in relation to the state. The issue at present is negative autonomy with respect to acts of Parliament. Those who advocate for Article 371, such as the Voice of the People Party, definitely see that para 12A(b) of the Sixth Schedule cannot sufficiently protect us from acts of Parliament, and hence the advocacy for Article 371. Article 371 provides stronger negative autonomy because the very wording of this Article implies a strong negative, i.e. that no acts of Parliament shall apply, unless the State Legislature so decides. Para 12A(b) of the Sixth Schedule provides a weaker negative autonomy as any exemption or modification of an act lies at the discretion of the President.
The argument on the other side is that if Article 371 is given, Sixth Schedule will be lost. But the history discussed above had already shown how the 1969 Act provided negative autonomy to the Autonomous State, even in the Sixth Schedule itself, and this did not in any way affect the legislative power of the ADC’s or any other provision in the Sixth Schedule. So, if the issue is negative autonomy of the State of Meghalaya with respect to acts of Parliament, then history has shown us that any such provision does not stand in opposition to any provisions in the Sixth Schedule itself. Therefore, this argument of ‘Article 371 vs Sixth Schedule’ can only come from a preconceived idea that the Central Government will make us choose between the two. It would still be wrong as Mizoram has Sixth Schedule, Article 371 and ILP. An option provided by the other side is to amend para 12A(b) of the Sixth Schedule and make it more like para 12(b), where the power to exempt from any act of Parliament lies with the Governor. My view of this option is that it is still not as strong as the negative provision of Article 371 and it is still redundant because the Governor operates under the counsel of the State government, and the State has curtailed the autonomy of the ADC’s.
It seems to me that the critical issue is negative autonomy of the State itself with respect to acts of Parliament. Let us come together, and put all options on the table. Article 371 is one option. Those who oppose Article 371 should at least offer a practical solution, such as to provide the provisions of Article 371 in the Sixth Schedule itself, such that no act of Parliament shall apply unless the State Legislature so decides. They should demand for negative autonomy to the State in the Sixth Schedule, as was done with the Autonomous State, but this would require defining all areas in the State as Tribal Areas. Simply opposing Article 371 without a practical solution is pointless. This negative autonomy for the State should cover the subjects in para 3 of the Sixth Schedule, in addition to those in Article 371.