SIXTH SCHEDULE
Sixth Schedule
The Sixth Schedule provides for administration of certain
tribal areas as autonomous entities. The administration of an autonomous
district is to be vested in a District Council and of an autonomous region, in
a Regional Council. These Councils are endowed with legislative, judicial,
executive and financial powers. Most Council consists of up to 30 members
including few nominated members. (The newest Bodoland Territorial Council is an
exception; it can have up to 46 members). These constitutionally mandated
Councils oversee the traditional bodies of the local tribes such as the
Syiemships and Dorbars of the Khasi hills of Meghalaya.
There is a significant degree of variation in the functions devolved
to various Autonomous Councils. For instance, the Bodoland Territorial Council
has more power compared to the NC Hills Autonomous District Council though the
latter has been in existence for decades before the former. This resulted in other
areas also demanding further powers and greater autonomy.
Constitutional Safeguards for the Tribal Population
With the dawn of independence and adoption of the
Constitution of free India, the British policy of isolation and non‐interference was replaced by the policies of integration
and development. The Constitution of India provided several types of safeguards
to the tribal communities. There are the Protective Provisions to protect them
from all forms of social injustice and exploitation, the Developmental
Provisions promote education and developmental activities, the Reservation
Provisions ensure their representation in legislative bodies and government
jobs, and the Administrative Provisions under the Fifthand Sixth Schedules provide for special administrative setup to
provide autonomy of self governance according to their customary traditions.
The tribal people live in contiguous areas unlike other communities.
So, an area approach was adopted for administrative and developmental purposes.
Under the Constitution “Scheduled Areas” are declared by the President after
consultation with the State Governors. These Areas have been designated to
protect the interests of Scheduled Tribes regarding their land and other social
issues and are governed through provisions of either Fifth or Sixth Schedule.
The Scheduled Areas of the North East are covered under the Sixth Schedule
provisions; all other Scheduled Areas are covered by the Fifth Schedule laws.
Sixth Schedule
Areas
The Sixth Schedule areas are governed through autonomous
District Councils which have wide ranging legislative and executive powers. As
a result, they almost work like a “miniParliaments.”
They have complete freedom to allow village level bodies to run according to customary
laws. The verdicts of district and lower level courts can only be challenged in
the high court. At present, 6th Schedule Areas exist only in four North‐Eastern
States: 1) Assam, 2) Meghalaya, 3) Mizoram, and 4) Tripura. These Areas are
administered through Autonomous Districts / Regional Councils. Except
Meghalaya, other three states have only certain selected areas covered under
the 6th Schedule.
Constitutional
Protection
Tribal people are simple, honest and naïve by any
yardstick of modern society. Besides, they have traditionally lived in close
contact with nature, in the hills and forests. In this sense they are different
from rest of the mainstream people; they have historically tried to avoid
contact with “outsiders” to preserve their traditional community based living
in which
they feel more secure. The Sixth Schedule of the Indian
Constitution offers them local autonomy through the system of autonomous
district and regional councils which have extensive legislative as well as
executive powers to protect land and tribal traditions. It was a path-breaking
effort when launched in the 1950s and offers better protection than the Fifth
Schedule provisions.
Customary Tribal
Laws
While many tribes converted to major religions like Buddhism,
Christianity, or Hinduism but still retained most of their traditional customs.
Traditional customs and community provide identity to tribal people. Most tribal
customary laws center on collectivity or “community” which not only has
authority on land and other local resources essential for daily livelihood but also
provides a sense of security and empowerment to its members. In this aspect,
North East tribes are more fortunate compared with their middle India counterparts
who have seen constantly erosion of their identity as well as community based
economy. The concept of individualism that marks the modern society does not
fit well with them; it simply is disruptive to any community based living. In
most hill tribes the village chief regulates the use of land and water and has
administrative and judicial power.
Over time, many values have changed but not the customary laws around
resource sharing, maintenance of ethnic identity or regulation of marriage.
However, new processes of land alienation are emerging in the form of
developmental initiatives, such as recently planned series of hydropower dams,
of the Indian government; these clearly threaten their livelihood security and
social identities.
Actually, erosion of their customary traditions started eroding with
the arrival of the British in the region and introduction of the formal law. In
order to avoid resistance, they were forced to recognize the customary laws of
the Assam tribes through the Scheduled District Act of 1874. Then the Assam
General Clauses Act 1915 protected tribal customs and practices by restricting
the application of the Provincial Laws in the Hill areas. The Montague-Chelmsford
Reforms 1919 also made similar provisions. The 1930 Indian Statutory (Simon)
Commission recommended the protection of tribal customary rights. The Government
of India Act 1935 accepted it and divided the hill areas into Excluded and Partially
Excluded and stipulated that no Act of the Central or Provincial Legislature
apply to them unless the Governor in his discretion so decided in view of peace
and good governance. These provisions later provided basis for the Sixth
Schedule laws for the areas excluded by the British from their administration –
the distinguishing mark of these areas is that they are run by the Autonomous
Councils. Through amendments, the Constitution also recognizes the customary
law of Nagaland (Article 371A) and Mizoram (Article 371G).
Recognition of
Customary Laws
This has always been an important issue in the North East
region. The demand for recognition of customary laws has led to conflicts such
as the Naga and Mizo Nationalist Struggles and the State’s response of amending
the Constitution to introduce Articles 371A and 371G. The Sixth Schedule was
also a response to the demand for the recognition of tribal customary laws.
Today many more tribes want their customary laws to be recognized because they
run their civil affairs, including land ownership, according to them but are
not recognized by the State, putting them in a disadvantageous position. For
example, most Arunachal tribals who are threatened with displacement by the
major dams may not be counted among the displaced because they live on the
CPRs. In Tripura the Gumti dam displaced 40,000 tribals in the 1970s but
counted only a third of them with individual pattas among the displaced. The
Hmar and Paitei of Manipur who may be displaced by the Tipaimukh dam may
document their laws but if the State does not recognize them, their fate will
be that of the Rongmei and Tripura tribes. The formal land laws are individual
based and do not recognize community ownership. So non-recognition of their law
is destructive to their livelihood. Recognition is thus vital for the peace to
prevail because it is a sign of acceptance of the customary identity. Many
conflicts in the Northeast have originated from this confusion. For example,
the Rongmei of Manipur who lost much of their land in a conflict or to the
Loktak project could not reclaim it, nor could they be considered displaced and
compensated because the law did not recognize their CPR based pattern.
Tribal Aspirations for Self Rule
Despite the British designation of “Excluded Areas” the colonial
interventions did interfere with tribal lifestyle; therefore, most tribes
resisted it. Although very few of their revolts have been recorded in the
official history of the freedom movement but one hears of resistance from the
Aka, Miri, Mishmi, Naga and others. Tribal agitations and movements of the North
East have revolved around maintaining their functional independence without any
daily role for the foreigners. They were often forced to take up arm against “outsiders”
interference. In 1918, several tribal leaders and formed the Naga Club which
soon assumed political dimensions and became the platform in their search for
autonomy and independent identity. During the decisive moment of the Japaneseinvasion
in the 1940s, A. Z. Phizo, a traditional Angami leader succeeded in bringing 27
tribes together under the Naga umbrella. Such efforts laid the foundation of
later nationalist struggles of the Naga, Mizo and others. These struggles basically
resulted from the fear of losing identity if assimilated into the mainstream
which always appeared more powerful and exploitative. Thus, all struggles for
autonomy in the North East have revolved around only one goal – preservation of
tribal identity and traditional culture. After 1947 the Indian state replaced the
British as the “potential” oppressive outsider. In 1946, the Naga leader Phizo
is reported to have met Mahatma Gandhi who was sympathetic to the cause of
autonomy. However, most national leaders failed to understand tribal
aspirations of the Northeast. Their failure gave a fillip to the sovereignty
movement.
The subsequent conflicts and negotiations resulted in the compromise
of a Naga State which would be administered according to their customary law
under Article 371A. In Mizoram a traditional chief Laldenga led the Mizo
National Front (MNF) to fight for a sovereign Mizo state and the negotiations
resulted in Article 371G. Under these Articles no Act of the Parliament has
legal force unless approved by the State Assembly.
Indian Government’s reactions to tribal unrest in the North East have
been predictable. It was always to initially treat these movements as a law and
order issue and to suppress them. If the movements persisted it accommodated
the aspirations of autonomy either by extending the Sixth Schedule to a few
tribes or by creating new States. It went beyond these steps only when they did
not work; for example, it granted extra autonomy to Nagaland and Mizoram than
to other states. Under provisions of Articles 371A and 371G respectively, in
these States no law of the Parliament applies unless it is approved by the State
Assembly. It can be safely asserted that the protective laws such as the Sixth
Schedule and greater autonomous status to some North East states are
manifestations of their strong aspirations to be governed by their own
traditional laws.
Evolution of the Sixth Schedule Laws
Excluded Areas
The administration of the hill Tribal Areas of the
Northeastern region, which were earlier known as “Backward Tracts”, has a
history. Under the Government of India Act, 1935, the hill areas of Assam were
divided into two categories – Excluded Areas and Partially Excluded Areas. The
Lushai Hills (now Mizoram) the Naga Hills and the North Cachar Hills were under
the “Excluded Areas”. No federal or provincial legislation extended to these
districts automatically. The Khasi – Jaintia Hills, the Garo Hills, and the
Mikir Hills were “Partially Excluded” areas. The British administered these
areas through specially appointed officials. But the problem was that people
had no platform to raise their issues and grievances. The colonial officers and
the local chiefs in most of the districts of the “excluded areas” used to rule
the people as virtual dictators. Thus, the 1935 Act in reality did not provide
local selfgovernance or political autonomy to the hill tribes of the “Excluded”
and “Partially Excluded” areas. Many people feel that these actions were
basically for the convenience of colonial administrators who only wanted to buy
peace to serve their larger commercial interests. But after independence the
policy makers clearly sought to develop these areas along with rest of the
country while simultaneously respecting the traditional tribal culture and
identity. Thus, a mechanism was sought that would allow the autonomy to the
tribal societies and yet continue to develop them like other areas and get
assimilated into mainstream society at their own pace.
The Bordoloi
Sub-Committee
An advisory committee on Fundamental Rights of Minorities
in the Tribal Areas was constituted in May 1946 by the Constituent Assembly of
India. One of the sub-committees constituted by the Advisory Committee was the
Northeast Frontier (Assam) Tribal and Excluded Areas Sub-Committee under the
chairmanship of Assam Premier, Gopinath Bordoloi. During its visits of various
areas and interaction with representatives of the hill people, the
Sub-Committee observed that
1. The people of
the region were sensitive towards their land, forest, lifestyle and traditional
systems of justice and, thus, needed safeguards and protections so as to
preserve their way of life and
2. There were
traditional self-governing institutions which functioned democratically and settled
issues according to their traditional lifestyle.
The Bardoloi Committee also made provision for Regional
Council for the tribes other than the main tribe. This scheme sought to build
up autonomous administration (through the District and the Regional Councils)
in the six hill areas of Assam (United Khasi-Jaintia Hills District, Garo Hills
District, Lushai Hills District, Naga Hills District, North Cachar Hills District,
and Mikir Hills District) so that the tribal people could manage their affairs
in their own traditional ways.
Birth of the
Sixth Schedule
Building on these observations the Sub- Committee
recommended policies that ultimately formed the substance of the Sixth
Schedule. It basically introduced the concept of Autonomous District Councils (ADCs).
Under the Sixth Schedule, the Assam Autonomous District (Constitution of
District Councils) Rules 1951 and the Pawi-Lakher (Constitution of Regional Councils)
Rules 1952 for the autonomous region in the Lushai Hills District were framed.
Thus, the ADCs were constituted in certain hill districts (except Naga hills) of
the then composite State of Assam in 1952 and in the Lushai Hills District (now
Mizoram) Regional Council (are now District Council) was introduced in 1953.
Since then these Councils have been functioning and managing land, forest,
market, primary schools, planning activities and so on and impacted traditional
institutions like tribal chiefs, tribal councils, etc.
Presently the North-East India has, fifteen District
Councils – two in Assam, three in Meghalaya, three in Mizoram, one in Tripura
and six in Manipur. Note that the Nagas, for whom the Sixth Schedule was
primarily created, have no autonomous District Council. The Arunachal Pradesh
Assembly had passed a bill to create four Autonomous District Councils under
the Sixth Schedule in the state in 2003 but the Parliament is yet to approve
it.
The Mizo Hills was elevated to the status of the Union
Territory of Mizoram in 1972 and three new autonomous councils came into
existence. It was given statehood in 1986. The Government of Manipur also
constituted six Autonomous District Councils for the tribal people for the hill areas of Manipur and wanted inclusion in the Sixth
Schedule. But the demand is pending for a long
time with the Central government. Nagaland and Hills of Manipur are not covered
by provisions of the Sixth Schedule; autonomy of the local governance of these
areas is administered by their State’s Laws. Mizoram is only partly covered by the
Sixth Schedule; autonomy of rest of the areas is established by the State’s
law.
The Sixth
Schedule Areas
The areas specified in Parts I, II, IIA and III of the
table below shall, respectively, be the tribal areas within the State of Assam,
the State of Meghalaya, the State of Tripura and the State of Mizoram.
PART I (Assam)
1. The North Cachar Hills District
2. The Karbi Anglong District
3. The Bodoland Territorial Area (or The Bodoland Territorial
Council)
|
PART II (Meghalaya)
1. Khasi Hills District
2. Jaintia Hills District
3. The Garo Hills District
|
PART IIA (Tripura)
Tripura Tribal Areas District
|
Part III (Mizoram)
1. The Chakma District
2. The Mara District
3. The Lai District
|
The Autonomous District Councils (ADCs)
The Sixth Schedule is regarded as a mini-Constitution
within the main Constitution. It envisages establishment of Autonomous District
Councils (ADCs) and gives them elaborate Legislative, Administrative and
Judicial powers. No law of the Centre or the State applies in any autonomous
region without District Council’s approval. The district councils are also empowered
to constitute Village councils and Village courts.
The Sixth Schedule empowers the Governor to determine the
administrative areas of the councils. He is authorized to create new autonomous
districts, change the area of existing districts, redefine the boundaries and
alter the names of autonomous districts. The nature of the District Councils,
however, differs from place to place. For instance, the District Councils in
Assam and Meghalaya have been constituted at the district level whereas in
Mizoram, the District Councils have been created at both the district and
sub-divisional levels.
Sixth Schedule
Status of Manipur
Centre ready to implement Status for hill areas
of Manipur
The Union government has notified Manipur state government to
furnish details of specific areas to be included under the Sixth Schedule of
the Indian Constitution.
The much debated demand for extension of 6th schedule provision of
the Indian constitution to the hill areas of Manipur is in focus at the Centre.
According to a letter sent from the Government of India, Ministry of Home
Affairs (North East Division) dated May 7, 2015 under the subject “Extension of
the Sixth Schedule of the Indian Constitution in the Hill Areas of Manipur,”
addressed to the chief secretary of Manipur, P C Lawmkunga. The official
notification by under secretary to the government of India, Manohar N Sukole
mentions that, “I am directed to state that the State Government of Manipur,
vide letter dated 07.04.2001,had conveyed decision of State Cabinet that
it had no objections to the extension of Sixth Schedule of the Constitution of
India in the tribal areas in the Hill district of Manipur with certain local
adjustment and amendments. In response, this Ministry vide letters dated
21.09.2001 and 17.10,2001, requested the State Government of Manipur to furnish
details of specific areas to be included in the 6th Schedule of the
Constitution and proposed local adjustments and amendments.” It may be
mentioned here that the cabinet decisions were taken during the tenure of W
Nipamacha Singh led MSCP government and later the Samata Party government led
by Koijam Radhabinod in 2001.
The
letter further reads, “It is stated that that all the six ADCs have been
requesting to the Government of India for inclusion of these ADCs under the 6th Schedule. In
view of these facts, in reply to an unstarred question, it has been stated that
the Government of Manipur has not sent details of local adjustments/ revised
proposal in this regard so far. The Rajya Sabha Secretariat has conveyed that the
reply has been treated as an assurance. To fulfil the assurance, reply of the
Government of Manipur to this Ministry’s letter dated 21.09.2001 and 17.10.2001
is required. In view of the above, the State Government of Manipur is again
requested to furnish details of specific areas to be included in the Sixth
Schedule of the Constitution and propose local adjustments and amendments.” This
letter designated as ‘Most Immediate Parliament Matter’ bearing number
1303/11/2015-NE.IV states that the Union government has a clear objective to
include the hill districts of the State under the 6thschedule provision.
On
5 September, 2014, some members of the Autonomous District Councils of Manipur
had staged a protest at Jantar Mantar, Delhi, demanding that the present ADCs be
upgraded to the 6th schedule of the constitution (The 6th schedule of the
Constitution provides for local self governance for the tribal people in the
northeast.) In their memorandum submitted to prime minister Narendra Modi on 30
August last, the then chairmen of the six Autonomous District Councils in
Manipur had stated that while the Manipur (Hill Areas) District Council (3rd
Amendment) Act, 2008 – on the basis of which the present ADCs were formed –
provided for devolution of power to the ADCs by the state government in 26
subjects, devolution has not happened in more than half of the subjects. The
Churachandpur ADC had passed a resolution earlier on 26 June, 2013 demanding
extension of the 6th schedule provisions to the ADC areas of Manipur. The said
memorandum is an endorsement of the Churachandpur ADC resolution by all the six
ADCs in Manipur hill districts. ( Read more at http://bit.ly/20ebFbP
)
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