By Fabian Lyngdoh
It was quite interesting to listen to the debate held at Sankardev College between two lawyers, Erwin K Syiem Sutnga and Robertjune Kharjahrin against one political leader, Ardent Miller Basaiawmoit. What came out prominently in the debate from the lawyers’ side is the hopeful expectation for the amendment of the Sixth Schedule that is to come soon for the greater protection of the Jaidbynriew (Tribe) in lieu of Article 371. Actually, the move to amend the Sixth Schedule had been initiated several years before. A review of the provisions of the Sixth Schedule by the Ministry of Home Affairs brought out certain deficiencies which make the 73rd and 74th amendments not applicable to the Sixth Schedule areas. Establishment of Village Councils is not mandatory in the Sixth Schedule areas, and where they exist (like the Dorbar Shnong), do not have constitutional protection for election on the basis of universal adult suffrage and tenure. There is no provision for separate fund for the ADCs in the Sixth Schedule areas on the pattern of Panchayati Raj Institutions because of the absence of a State Finance Commission, and there is no constitutional provision for reservation for women in the District Council, Regional Councils, Dorbar Hima, Dorbar Raid, Dorbar Shnong etc., in the Sixth Schedule areas.
The National Commission to Review the Working of the Constitution (NCRWC) had suggested the introduction of positive democratic elements like gender justice and adult franchise into these traditional institutions to make them broader based and capable of dealing with a changing world, to provide safeguards for minority and micro minority, and protection of their traditions, to evolve a process of central funding for plan expenditure to the councils directly. The Second Administrative Reforms Commission (ARC) Report, 2008, recommended for the setting up of a State Finance Commission and a State Election Commission as provided in the Panchayati Raj System for conducting election to the councils, and to provide discretionary powers to Governors without having to act on advice of the Council of Ministers on all issues relating to Councils.
It was since 2011, that a comprehensive bill to amend the Sixth Schedule was drafted and circulated to different institutions by the Ministry of Home Affairs, Government of India for views and comments. The purpose of these amendments is to strengthen the autonomous councils set up in the States of Assam, Meghalaya, Mizoram and Tripura, so that the benefits from the 73rd and 74th constitutional amendments be made applicable to the Sixth Schedule areas. The Ministry of Home Affairs drafted the Sixth Schedule to the Constitution (Amendment) Bill 2012 which remains under process till date. Expert committees recommended that directly elected village level representative bodies need to be constituted and adequately empowered, provided their traditional practices carried out in a modern world do not deny legitimate democratic rights to any section in their contemporary society. There are many points of contention that the leaders of the ADCs of Meghalaya did not agree with the various suggestions given by the Central Government’s agencies, and there are also many undemocratic elements which these ADC leaders would like to retain and incorporate in the Sixth Schedule amendment that are not acceptable to the spirit of the amendment itself. This tussle would make the intended amendment of the Sixth Schedule not applicable to the ADCs of Meghalaya.
Let us go into some constitutional backgrounds of the issue. Article 243 in Part IX of the Indian Constitution deals with the establishment of the Panchayats as local self-governance institutions in India; whereas, Article 244 in Part X of the Constitution deals with the administration of Scheduled and Tribal Areas. Article 244(1) gave birth to the Fifth Schedule which concerns the administration of Scheduled Areas and Tribal Areas in India. Article 244(2) on the other hand, gave birth to the Sixth Schedule, which concerns specifically with the administration of the Tribal Areas in the then, State of Assam.
Originally, Nagaland and Mizoram were placed under Article 244(2) within the State of Assam. But since Article 244(2) is the basis of the Sixth Schedule, which in turn provided only for the establishment of the Autonomous District Council within the State of Assam, the Nagas rejected the scheme. When Nagaland was given full-fledged statehood in 1962, it was based on Article 371A which is a state-specific constitutional provision. When Mizoram attained full statehood in 1986, Article 244(2) and the Sixth Schedule were made applicable only to the Lai, Mara, and Chakma areas, while the State of Mizoram as a whole is based on Article 371G, similar to Article 371A of Nagaland.
When the Autonomous State of Meghalaya was founded in 1969 within the larger State of Assam, it was not based on Article 244(2) which is linked only to the Sixth Schedule and the District Councils, but a new version of Article 244 that concerns with the administration of Tribal areas, in the form of Article 244 A was inserted. When Meghalaya attained full-fledged statehood in 1971, it was based on the previous Autonomous State. Hence, the full-fledged State of Meghalaya is also based on Article 244 A, which implies that Meghalaya can be indirectly inferred to as a Tribal State by virtue of Article 244 A because the basic Article 244 concerns with the administration of scheduled areas and tribal areas in India; whether to be administered by the District Council or by the State Government, is a different matter.
But Article 244 A does not contain protective constitutional provisions for the State of Meghalaya as provided in Articles 371A and Article 371G. That is the constitutional anomaly! If Nagaland and Mizoram which were formerly placed under Article 244(2), were given special constitutional provisions as Tribal States under Articles 371A & 371G respectively, why should not the State of Meghalaya, the areas of which are also based on Article 244(2), be also placed under some version of Article 371 when it has become a full-fledged state? Or why should not constitutional protective provisions similar to Articles 371A and 371G be provided in the Article 244 A itself? These special protective provisions for the Tribal States cannot be obtained merely by amending the Sixth Schedule, because the whole Sixth Schedule itself is a mini-constitution meant only for the establishment of ADCs within a larger non-tribal population of a State at a time when the Khasi and Jaintia Hills were part of Assam.
Any amendment of the Sixth Schedule is not concerned with the strengthening of the constitutional protection for the Jaidbynriew (Tribe) via a vis the Government of India, but it is meant only for giving more legislative and administrative powers to the District Councils vis a vis the State Government. We are tempted to think that the District Councils of Meghalaya are the core concern of the move for amending the Sixth Schedule! That is not the fact! The move to amend the Sixth Schedule for giving more legislative and administrative powers to the ADCs is based on the persistent demands of the Bodoland Territorial Council, the Karbi Anglong Territorial Council, and the Dima Hasao Autonomous District Council for more autonomy from the State Government of Assam; the demand of the Tripura Tribal Areas Autonomous District Council for more autonomy from the State Government of Tripura, and the demand of the Lai, Mara, and Chakma ADCs for more autonomy with respect from the State Government of Mizoram. The ADCs of Meghalaya are not at all the core of attention!
So what additional legislative and administrative autonomy do the ADCs of Meghalaya need from the State Government for a better means to protect the Jaidbynriew? So far, the greatest achievement for protecting the Jaidbynriew is the attainment of the full-fledged Hill State of Meghalaya. Amending the Sixth Schedule would not bring more autonomy to the Jaidbynriew vis a vis the Government of India, but it would only mean enhancing the powers of the District Councils in relation to the State Government of Meghalaya. What special constitutional protection would the Jaidbynriew achieve by enhancing the powers of the District Councils and reducing the powers of the State Government? That is only a wild dream! What is actually needed for enhancing tribal autonomy in Meghalaya is the constitutional protective provisions for the State as a whole and its government, either through a special version of Article 371 or by additional provisions in Article 244 A through amendment of the Constitution. That is constitutionally and legally perfectly sound. Whether that can be achieved or not, is not based on the constitutionality or legality of the issue, but it shall be based on the regional and national politics of the country. International geo-political circumstances may also be the ingredients in the soup!