ABSTRACT
The inclusion of ‘Sixth Schedule to the Constitution’ (hereinafter Schedule Six) had mainly two primary objectives to be established, firstly to recognize the customary tribal practices and the laws secondly, assimilation with the mainstream of the country. The role of Autonomous District Councils in administering executive, legislative and judicial powers under the Schedule Six reflects the tribal autonomy and the flexible role the Constitution has adopted to keep the tribes at peace. Recently, the “Constitution (One Hundred and Twenty-fifth Amendment) Bill, 2019” introduced in the Rajya Sabha proposed to grant more powers to the Autonomous District Councils but focus was put more on the financial autonomy required to govern the Councils. A Parliamentary Standing Committee headed by Anand Sharma examined the bill and submitted a comprehensive report on 6th May 2020. However, the bill still remains a bill till date. The development of Schedule Six to the Indian Constitution has promoted the idea of encompassing and identifying the unique social traditions prevalent in the tribal areas. An element of growth is allowed through it to protect and promote their culture, traditions and the administrative patterns. The historical development from British regime from being termed as ‘backward’ to ‘excluded’ than to be recognized as a ‘Schedule Six’ State has been a long cakewalk. This paper attempts to do an investigatory study firstly, to understand the historical background of the Schedule Six to the Constitution. The role of Britishers intervention in understanding the tribal areas through enactment of various legislations. Secondly, the process of drafting which took place and the endless debates in the Constituent Assembly to finally put the law in place in the Constitution and thirdly, Various major changes that took place in the subsequent years will be analysed.
- INTRODUCTION
Schedule Six is a mini Constitution in itself as they determine the political and Constitutional arrangements of some definite territory or territories of India. The only thing which distinguishes them from the other parts of the Constitution lies in the fact that whereas the rest of the Constitution requires for amendment, a special majority in Parliament either with or without concurrence of atleast half the States, these provisions can be amended by any Act of the Parliament passed in the ordinary way. This special treatment results from the origin and history of the Schedule for segregation of these areas.
The history of the events culminating to the present Schedule Six over a century lies in the secret of the approach to their interpretation. The stamp of ‘backward tracts’ in the “Report of Indian statutory Commission Volume 1 (Survey), 1930” led to these areas to be excluded from the application of Civil and Criminal Jurisdiction of the British rule. A list of backward tracts was chalked out. These identified areas were empowered with special laws which prescribed to “simple and elastic forms of judicial and administrative procedure”. The Government of India Act, Section 71 provided an absolute statutory resistance to the legislative authority of the legislatures within the backward tracts. The Montagu Chelmsford Report had excluded these areas from Reforms and had left them to be administered by the Governors.[1]
The examining of the British legislations with progress to draft the Schedule Six through efforts in the Constituent Assembly debates paved the way in providing a special status to the hilly tribal areas identified under the Schedule Six of the Constitution. The identification and the development of the ‘Autonomous District Council’ have protected and promoted the functioning through providing autonomy to these Councils.
- HISTORICAL BACKGROUND: SCHEDULE SIX TO THE INDIAN CONSTITUTION
The historical roots of administration in the North East (N.E) area i.e the ‘tribal belt’ can be traced back to the British rule. The advent of Robert Clive in 1765, was credited for establishing the Bengal Presidency and introduction to ‘supervision of laws’ and mainly ‘collecting revenues’ for the British presidency. Fort William of the East India Company became central to control even the estates bordering North Eastern Province. Though the British Presidency had officers to collect revenues from the province, it is learnt that the work was generally done by the zamindars. The disputes among the zamindars on revenue issues led to the separation of few areas from then Rangpur District (now in Bangladesh) and thus, a separate special post known as the “Civil Commissioner of North-East Rangpur)” was created. The historical development of the Schedule Six to the Constitution of India (hereinafter will be referred as ‘Schedule Six) followed a list of Regulations and Acts which paved way for the formulation of the present Schedule Six. This chapter will bring to light various Regulations and Acts enacted to govern the tribal areas of the North East province before the Constitutional framing of the Schedule Six. [2]
‘Regulation X of 1822’[3] pioneered through it the Tribal area management of the North Eastern province. A new form of administration was brought to place popularly known as the ‘Non-Regulated System’. Under it, all the powers of Magistrates, collectors were centred in one hand. The role of commissioners became prevalent.
“Government of India Act 1853”[4]and “Indian Councils Act of 1861”[5] allowed laws to be framed by the Governor General in Council. Section 42 of the India Councils Act empowered the Governor of each Presidency to make laws for ‘peace and good governance’[6].
The enactment of the “Garo Hills Act, 1869” was the first attempt of the British Presidency to alienate the tribal areas from the mainland administration of laws. The Act stated that the Criminal and Civil jurisdiction will stand removed from the British administration but Lt. Governors will be appointed from time to time to keep track of Civil and Criminal matters including the settlement and realization of the public revenue. The Act also encompassed Jaintia and portions of Khasi Hills under its ambit. This validity of the Act was upheld as a valid piece of conditional legislation. [7]
Later a new development was tracked through the “Government of India Act, 1870”, the act conferred powers to the executive to frame laws for the areas under the “Garo Hills Act 1869”. Also, the Governor General was recognized to legislate separately for such areas.[8]
The dynamics of laws shifted in the year 1874 when the “Scheduled Districts Act” was enacted. The powers of “Lt. Governor of Bengal” were shifted to “Chief Commissioner” in Assam. The enactment of the Act made the entire area under the power of the then Chief Commissioner to be declared as Scheduled District. The objective of this Act was to encompass the backward areas of the British province and the areas where with time general laws of British Government were removed. The Act enabled the local Government to declare what laws were functional and what were not. The Act remained in the statute till the “Government of India Act, 1935” came into force.[9]
The “Montagu-Chelmsford Report of 1918” brought the role of the Governor to the forefront. The contention for the enactment was that there were certain remote areas wherein the political reform could not be applied. The role of the Governor was to function in these backward areas to uplift the tribal societies.[10]
To execute the recommendations put forth in the recommendations of Montagu-Chelmsford Report, the “Government of India Act, 1919” was introduced which inserted section 52A in the “Government of India Act, 1915”. The Act provided autonomy to the “Governor- General in Council” under Sec 52A (2) to declare any territory under the British regime as ‘backward tract’. Under it, any territory declared as ‘backward’ will be exempted from any Act of Indian legislature or will apply with various modifications which is deemed fit. The territories which are chalked out in the North Eastern province were designated as ‘tribal areas’ and later recognized as ‘Schedule Six’ under the Indian Constitution of 1950. [11]
The status of these tribal areas was examined in vast through the “Indian Statutory Commission, 1930” also popularly known as the “Simon Commission”. Through the creation of the Commission, various suggestions were made on the Constitutional arrangements that is quintessential in such areas. Its main recommendation was to initiate a centralized administrative structure. The issue is that due to the absence of any provincial legislature there is a lack of will or any means to devote special attention to the micro demands as the expenditure in the backward areas does not aid the political interest of an elected representative.[12]
“Government of India Act, 1935” gave shape to the existing structure by incorporating the term “excluded areas” or “partially excluded areas” instead of the term ‘backward areas’. The idea through the act is to
III. DRAFTING THE SCHEDULE SIX OF THE INDIAN CONSTITUTION: THE CONSTITUENT ASSEMBLY DEBATES[13]
The backdrop for initiating special provisions in this schedule was to provide a platform for promoting and protecting the culture, distinct customs and civilization of these tribes. There were various committees which aided in the framing of the Schedule Six;
“Gopinath Bordoloi Comitteee” came as a fruit from the intense Constitutional debates on the protection of tribal areas in the North East province. The intent through it was to achieve the aspirations of the people of these areas whether they are met and on the other hand whether these areas are assimilated with the mainstream country. The committee was headed by Shri Gopinath Bordoloi and the other members included Shri J.J. M Nichols Roy, Shri Rup Nath Brahma, Shri A.V Thakkar and others. The Bordoloi committee submitted its report to the Advisory committee to which it came up with two suggested amendments. The report was also placed before the President of the Constituent Assembly. These amendments included are as follows:
- The Assam High Court shall have the power of revision in cases where there is failure of justice or where the authority exercised by the District Court is without jurisdiction.
- The plain portions will be excluded from Schedule B of the areas which were recommended for inclusion in the Schedule by the Sub Committee.
Shri B.N. Rau who had prepared the first draft of the Constitution incorporated the recommendations in the Eight Schedule of the draft. The drafting Committee after minor amendments changed it from Eight to Schedule Six. In the Constituent assembly debate after extensive discussions, the draft Constitution was adopted with various amendments.
- CONSTITUENT ASSEMBLY DEBATES
The “Constituent Assembly” considered to debate on the matter on the following dates 5th, 6th and 7th September, 1949.
In the debate, three distinct matter was expressed which are as follows:
Firstly, Shri Brajeshwar Prasad was critical with the role of Governor in the tribal areas. According to him, instead of Governor, the role of the President should be supreme. In other words, it can be realized that the ‘Central Government’ role should be dominant. Shri Prasad was skeptical in allowing administrative role to be handed over to the tribals. He stated that he does not wish to jeopardize the interest of India in the hands of the tribals. He also claimed that the principle of self-determination has worked havoc in Europe.
Later, it is learnt in the draft paragraph of the schedule, sub paragraph (3) of draft paragraph 15 and clause (c) of draft paragraph 18, both stating that Governor shall exercise his powers under these paragraphs in his discretion, were deleted, to bring the provisions of the Schedule in line with the thinking of the founding fathers about the role, a Governor should play in a free India.
Secondly, two Hon’ble members of Assam Shri Kuladhar Chaliha and Shri Rohini Kumar Chaudhuri also raised their voices in various occasions. They were also skeptical about giving too much autonomy to the tribals which was presumed to move forward in creation of another ‘tribalstan’ similar to ‘Pakistan’ which was created.
Thirdly, the views of the Chairman, Shri Gopinath Bordoloi was given more weightage not because of his position as stated by Nichols Roy but because of his attitude towards the tribals which was claimed to be kind and sympathetic to the hills people. Shri Bordoloi also put forward various issues to plate which were brewing in the tribal people.
He referred to various problems which is difficult for the plain people to resolve it. Even some of the areas were learnt to be termed as ‘war zones’. During times of war the then rulers and leaders hammered in the mind of tribals a sense of separation and isolation and assured them of an independent State. Also, it is learnt that certain institutions among the hill tribes are excellent in administration and that it would set a bad example in destroying such a system.
- AMENDMENTS TO THE SCHEDULE SIX OF THE CONSTITUTION
There have been amendments to the Schedule Six in three different ways:
Firstly, by constitutional amendment as per the procedure which is laid down in Article 368 of the Constitution of India
Secondly, by an ordinary Parliamentary legislation as provided in paragraph 21 of the Schedule Six
Thirdly, by notification issued by the Governor under paragraph 1(3) of the Schedule Six amending the table appended to paragraph 20 of the said Schedule.
The Schedule Six of the Indian Constitution has undergone various amendments in ten occasions. Some of the amendments are discussed below which are as follows;
In the “State of Nagaland Act, 1962”, an agreement on sixteen point was confirmed between the Government of India and the Naga People’s Convention to form a separate State. Thus, State of Nagaland Act, 1962 was enacted by the Parliament and Naga Hills- Tuensang area appearing as Item no 2 in Part B of the table appended to paragraph 20 was omitted and consequently the provisions of the Schedule Six ceased to be applicable to the State of Nagaland.
In the “Assam Reorganisation (Meghalaya) Act,1969”, the Act was enacted to establish Meghalaya as new State comprising of the Khasi-Jaintia Hills and the Garo hills district appearing at serial no 1 and 2 of the table appended to paragraph 20 of the Schedule Six vide Section 3(1) of the Act. Through this Act major amendments were carried out which are as follows:
(a) The Maximum number of members in the District Council was increased from 24 to 30.
(b) The period of elected members was specified to be normally five years and it was stated that the nominated members shall hold office during the pleasure of the Governor.
(c) President should consult the Governor to make changes in the power etc of the village Courts, Appellate jurisdiction of District or Regional Councils.
(d) District Council could make regulation for prescribing the language and manner of primary education to be given by the District Council with the previous approval of the Governor.
(e) Functions in relations to agriculture, community projects, cooperative societies, social welfare, village planning etc could be entrusted by the Governor to the District Council or any officers
(f) The power to draft rules and regulations to collect land revenue or taxes requires assent of the Governor
“North Eastern Areas (Reorganisation) Act, 1971” made major changes which includes
(a) Proviso was added to paragraph 1(3) to state that any order made by the Governor modifying area of District Council or alterating its name many contain such incidental and consequential provisions as are deemed necessary for giving effect to the provisions of the order
(b) President was authorized not to apply any Act of Parliament to an Autonomous District
(c) Paragraph 18 containing provisions for application of the provisions of the Schedule Six to the Part B areas was deleted as Part B was itself deleted from the paragraph 20.
(d) Paragraph 20 was recast and the table appended to this paragraph was divided into three parts.
The “Repealing and Amending Act,1974” made an insignificant change by substituting the words ‘cattle pounds’ as ‘cattle ponds’ in paragraph 6 (1) of the Schedule.
In the “Constitution (49th Amendment) Act,1984” made changes in the Schedule relating to the State of Tripura.
CONCLUSION
The historical understanding of the Schedule Six from British times to the present times has achieved various milestone status but how successful has it been in the present era is another issue to discuss. Lately, under the Schedule Six States there has been a constant discrimination against non-tribal people. The fundamental rights of the non tribals are always at stake. In a State like Meghalaya, non tribals are recognized by a local name popularly known as ‘Dkhars’, which mean outsiders. The Schedule Six status apart from administrative functions, expands to violation of fundamental rights of the Constitution. The right to settle in any part of India is not available in these areas as non-locals are not allowed to purchase or sell any land in the State. The constant fight for inner line permit shows the local people to enjoy the status of being excluded in the present developing era.
The Autonomous District Councils are always at a clash with the State legislature as the main stream laws are slowly mushrooming over the tribe’s ancient law. The District Councils are yet to upgrade its functioning and the need for alternative justice system has often become a necessity. In the changing generation tribal people are less aware about the Council’s functioning, their roles and functions with the tribal society. Also, the biased decisions with maximum civil punishments on criminal charges has made people to less rely on the judgments. The recent amendment bill of Khasi Social Customs bill has raised lot of protests and anguish among the tribal people as attempts were being made through this bill to discourage marriage between Khasi and other communities.
The development of the Schedule Six status pre-independence era had an objective to be met which was to provide the tribal people independence through providing them autonomy to rule themselves. The Autonomous District Councils were created which served as the pillars of administrative and legal justice. The recent understanding between the State legislature and the Autonomous District Councils can be learnt to be a bitter sweet symphony. It is the role of the Central Government with initiation of the State Government to uplift the structure under Sixth Schedule to protect the Constitutional beauty through it.
The author Pulak Symon is working as a Legal Research Scholar at the Department of Law, Government of Meghalaya.
References:
[1] Govt of India Act, Sec 71.
[2] J Zahiuana, ‘Constituent Assembly and the Sixth Schedule’, Indian Journal of Political Science (Oct 2010).
[3] Regulation X of 1822.
[4] Government of India Act 1853.
[5] Indian Councils Act of 1861.
[6] Indian Councils Act of 1861, Sec 42.
[7] Garo Hills Act of 1869.
[8] Government of India Act of 1870.
[9] Scheduled District Act of 1874.
[10] Montagu-Chelmsford Report of 1918.
[11] Government of India Act, 1919.
[12] Indian Statutory Commission, 1930.
[13] Constituent Assembly Debate Relating to the Sixth Schedule, 5 Sep 1949.