By Fabian Lyngdoh
The ongoing debate on the relative statuses and powers of Article 371, and the Sixth Schedule in the Constitution of India is really interesting. Legal experts and political scientists have expressed their opinions from different points of view. However, while standing from another perspective, I feel the need to contribute to the debate to make it more interesting.
Since the text of the Constitution of India is freely available for all to study and understand, let us start with Article 244 (2) which originally concerned the creation of the Sixth Schedule to the Constitution of India, to provide for the administration of the Tribal Areas in the State of Assam. That is very clear. So, the Sixth Schedule is a constitutional provision for the autonomous existence of tribal communities within the State of Assam. That is what it originally meant. It is, Tribal autonomy vis-à-vis the State of Assam, and not Tribal autonomy vis-à-vis the Union of India. Hence, the Sixth Schedule provides for a balancing act between the Autonomous District Councils and the State Government. From this derivation, the ADCs in Meghalaya exist vis-à-vis the Government of Meghalaya. That is why we have the District Council Affairs Department in the State. The ADCs in Meghalaya cannot be understood to exist vis-à-vis the Government of India. That is the equation of the Sixth Schedule.
Article 371 is concerned with state-specific special provisions, and Article 371A is a special provision with respect to the State of Nagaland. It provides for the existence of the Tribal State of Nagaland vis-à-vis the Union of India in a special way, and established a balancing act between the Government of Nagaland and the Government of India in ways not existing in other States. Likewise, Article 371G provides for the existence of the Tribal State of Mizoram vis-à-vis the Indian Union, and the special balancing act between the Government of Mizoram and the Government of India. The difference between Article 371A and Article 371G is that, in Nagaland, the Governor has special responsibility with respect to law and order, while it is not so in Mizoram. Sub-section (iv) of Section 1 of Article 371A speaks of ownership and transfer of land and its resources, while Article 371G speaks of the ownership and transfer of land, and the phrase, “and its resources” is not included. Despite the difference, the respective Articles specifically provided for the existence of Nagaland and Mizoram as Tribal States vis-à-vis the Union of India. But there is no specific constitutional provision for the existence of the State of Meghalaya as a Tribal State via-a-vis the Union of India, other than the statement in the Assam Re-organisation (Meghalaya) Act, 1969 saying that its territories shall comprise the United Khasi Jaintia Hills District and the Garo Hills District.
Article 371A and Article 371G state that no Act of Parliament shall apply in the State of Nagaland and the State of Mizoram respectively, with regard to religious and social practices, customary laws and procedures, administration of civil and criminal justice involving decisions according to customary laws, and ownership and transfer of land, (and its resources in Nagaland) unless the legislative assembly of the respective States by a resolution so decides. That is the equation between the legislative assemblies of these States, and the Parliament of India, at least in basic constitutional principle. This indicates that there exists a political relationship between the States of Nagaland and Mizoram with the Union of India, and a political relationship between the Governments of these States and the Government of India.
There is no such equation between the Meghalaya Legislative Assembly and the Parliament of India. Paragraph 12A(b) of the Sixth Schedule states that the President may, with respect to any Act of Parliament, by notification, direct that such Act shall not apply, or shall apply in Meghalaya subject to exceptions and modifications, with retrospective effect. The question is how shall this be done? Certainly, these exceptions and modifications shall be indicated in the executive order, and not included in the Act of Parliament. And who will make the necessary exceptions and modifications through executive order? Certainly, not by the Government of Meghalaya, but by the Central Government (whichever political party is in power). So, the relationship between the States of Nagaland and Mizoram with the Union of India, and the respective governments, is dynamic and active, while the relationship between the State of Meghalaya and the Union of India is passive and static.
Kitdor H Blah has rightly pointed out in his article, “Positive & Negative Autonomy in the Khasi, Jaintia & Garo Hills” (The Shillong Times, February 15, 2025) that Articles 371A and Article 371G established negative autonomy to the States of Nagaland and Mizoram respectively, as they bar the application Central Laws with regard to certain subjects in these State unless accepted by resolutions of their state legislatures. That is a protective privilege. Someone has pointed out that though Articles 371A and Article 371G provide theoretical autonomy to the Tribal States over land and its resources, but in practice, disputes are created between the State Government and the Central Government by stating at the same time that the Sixth Schedule does not lead to such disputes. Of course, the Sixth Schedule would not lead to such disputes with the Union Government because it establishes District Councils which have dynamic and active relationships only with respect to the State Government, but not with the Central Government.
The argument that Articles 371A and 371G are only theoretically sound, but problematic in practical applications, is only a limited legal point of view. These Articles do not provide positive autonomy to the States, as Kitdor H Blah has pointed out. The State Legislatures Nagaland and Mizoram have the powers to make laws on subjects contained in the State List and Concurrent List as any other States, but they have no power to make laws on the basis of Articles 371A and 371G. Nevertheless, through these Articles they have the power to accept or reject the application of Central laws with respect to certain subjects. Such privilege is not given through the Sixth Schedule. For a tribal state to have the privilege to dispute with the Central Government is indicative of dynamic and active autonomy. Being prevailed by the power of the Centre is a different matter. Having the constitutional privilege to be in dispute with the Central Government on the basis of dynamic and active relationship, is better than having no privilege at all by being placed in a passive and static relationship.
The District Councils only have a passive and static relationship with the Central Government. The autonomy of the District Council is only with respect to the State Government, but not with respect to the Central Government. The Legislative Assembly of Meghalaya has power to make laws on 66 subjects in the State List, and 47 subjects in the Concurrent List of the Seventh Schedule. All the subjects that the District Councils are empowered to make laws are also included in the State List and Concurrent List, except that which is relating to the appointment of chiefs and headmen. Perhaps the only law of the District Council that can escape the application of the Paragraph 12A of the Sixth Schedule is that which concerns the appointment of chiefs and headmen.
There is another disputable argument which attempts to prove that the Sixth Schedule is superior to Article 371, without specifying which provisions of the Article 371, from A to I. It was pointed out that the people of Union Territory of Ladakh demanded the Sixth Schedule but the Central Government offered them Article 371 instead. The people of Ladakh rejected Article 371 and demanded the Sixth Schedule. This, the argument says, proves that the Sixth Schedule is superior from granting autonomy than Article 371. The fact is that the Central Government will not grant the Sixth Schedule because Ladakh is not a District within a State. The Central Government will also not grant Article 371 in the likes of 371A for Nagaland and 371G for Mizoram because Ladakh is not a State but only a Union Territory. Perhaps, the Central Government is contemplating creating a new Article 371J with provisions much different from that of 371A and 371G. If the Central Government had offered Article 371 with the same provisions as Articles 371A and 371G, the people of Ladakh would have gladly accepted.
The District Councils in Meghalaya are different from the District Councils in other States of North East India. District Councils in other States of North East India concern with the affairs of the minority tribal populations, while the District Councils in Meghalaya concern with the majority tribal population in the State. That is a big difference. The State and the autonomous districts are one and the same. Constitutional protection of tribal identity for the people of the State of Meghalaya is contained in the Sixth Schedule, while the Sixth Schedule concerns with the autonomous districts and District Councils, and not with the State and the State Government. This is what brought about the confusion.
The autonomous districts have constitutional tribal protection, while there is no specific provision for the State as a whole. The move to demand Article 371 with provisions like Articles 371A and 371G is for special protection of Meghalaya as a Tribal State with the privilege to bar or accept the application of Central Laws on certain subjects by a resolution of the State Legislative Assembly. The District Councils have no such privilege because their autonomy is only with respect to the State and not with respect to the Union of India. Whether that is granted or not is a different matter.