After the creation of full States comprising Sixth Schedule areas – such as in Mizoram and Meghalaya – some commentators have questioned the need for these provisions. In Meghalaya, the State Government has held the view that that these Councils ought to stick to their traditional role, which is to protect tribal culture, land and identity and refrain from engaging in developmental activities. In many cases, State Governments have deliberately impeded the functioning of the Councils, particularly through blocking the flow of funds to them. One of the serious limitations of the Sixth Schedule has been the fact that the powers given to the Councils to make legislation and implement development programmes have not been matched with the financial autonomy to follow this through. As a result, ADCs often have to depend on funds from the Central and State Governments (routed through the State Government) which are often antagonistic toward the work of the ADC. Apart from government sources, the Autonomous District Councils receive a small amount from the collection of taxes and land revenue. In many States, the issue of financial resource allocation has become a major bone of contention between the State Government and the ADCs. In Meghalaya, even the salaries of primary school teachers could not be paid regularly because of non-receipt of funds. In this case, the government claimed to have withheld the funds since the ADC in question, the Khasi Hills Autonomous District Council, was engaged in corrupt practices.37 Further, there is a large gap between the approved budget and the flow of funds from the State Government to the Council, which adversely affects both the planning and the execution processes. This is in sharp contrast to arrangements made for Panchayats, which have been provided with their own Finance Commission which is empowered to periodically review the financial position and lay down appropriate principles of allocation of resources between the Panchayats and the State.
In Mizoram, the situation is somewhat different since the three ADCs in the State cover only 15 per cent of State’s population (the dominant majority are Mizos). Thus, these Councils do not receive sufficient attention from the State Government. The
37 Tiplut Nongbri, Democracy, Gender and Tribes: A Critical Appraisal of India's Constitutional Policies, Indian Anthropologist,
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tribal communities have constant frictions, which adversely affect administration and developmental activities. In fact, between the years 1986 and 2000, there have been 21 resolutions submitted in the Mizoram Legislative Assembly demanding the abolition of the Chakma Autonomous District Council.38 The Karbi Anglong ADC was dissolved four times between 1988 and 1998.
Furthermore, the structure of the Sixth Schedule is such that the autonomy of the ADCs is seriously restricted in several respects. For example, in Meghalaya, the autonomy of the ADC has been curtailed through the insertion of paragraph 12 A into the Constitution which states that all legislations passed by the State Government take precedence over those passed by the Councils. The powerlessness of the ADC is clear if one examines the issue of regulation of forests – one of the most important subjects entrusted to the ADC. Following a Supreme Court order in 1995-96 in the Godavarman case, felling of timber in private forests was banned irrespective of ownership status in Meghalaya. All forest-related activities could only be carried out as per the Working Plan duly approved by the Forest Department, thus completely bypassing the jurisdiction of the ADCs. Many of the functions of the ADCs are being taken over by the State Governments – in Mizoram as well as the Garo Hills, executive and judicial functions have been taken over by the Deputy Commissioner and District Magistrate, thus rendering the ADC redundant. The Commissioners coordinate development programmes and process legislation, making them extremely powerful at the district level. All the activities and departments under the control of the Councils as per the provisions of the Sixth Schedule have not yet been transferred to them and neither have parallel institutions such as the District Rural Development Agencies (DRDA).
The matters over which the ADCs have powers do not cover the entire gamut of issues pertinent to the creation of genuine autonomy. Thus, control over primary schools, markets, agriculture, forests and so on is necessary but not sufficient for tribal groups to preserve their identities and ensure the development of their districts and regions.
Considerable powers have been handed over to the Governor even in the Sixth Schedule areas which can impede the autonomous functioning of the ADCs. The Governor has the power to decide whether laws made by the State Legislature, on matters other than those over which the ADC has legislative powers, will apply to the Autonomous Districts. The decision regarding applicability of laws made by Parliament in Sixth Schedule areas is made by the Governor in the case of Assam and the President of India in the case of other Northeastern states. Moreover, all legislation passed by the ADCs requires the assent of the Governor to become law. The Governor also has the power to dissolve the ADC.
38 Subir Bhaumik and Jayanta Bhattacharya, Autonomy in the Northeast: The Hills of Tripura and Mizoram, in Ranabir
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There is a significant degree of variation in the functions devolved to various Autonomous Councils. For instance, the Bodoland Territorial Council has more power and departments compared to other Autonomous Councils of the Northeast, though the latter have been in existence for several decades more. This situation has resulted in other areas demanding greater powers and autonomy.
There is also no mandatory time limit for the reconstitution of the ADC once it is dissolved, and hence election is indefinitely postponed. Constitutionally, the Autonomous District Council should have its own Autonomous Agency, similar to the Election Commission of India or the State Election Commission to conduct the elections to the Autonomous Councils. But the Rules of 1951 empowered the State Government to conduct the Council elections through the Hills Area Department of the Assam State Government, a rule which works against the proper functioning of the Sixth Schedule.
While the Seventy-Third Amendment to the Constitution provides for the reservation of one-third of all Panchayats seats at all levels for women, the Councils, unlike Panchayats, do not have any provision for such reservation. In fact, both the Fifth and Sixth Schedules have been silent on the issue of women’s representation and gender justice. As a result, women are almost completely absent from the bodies and institutions created under these provisions. It has been found that only the Bodoland Territorial Council and Autonomous District Councils of Mizoram have a system of reservation of seats for women, although the proportion of reserved seats is very small. The Autonomous District Councils of Mizoram have amended their laws relating to Village Council and District Council and decided to reserve at least one seat in every Village Council for women and two nominated seats of the District Council for women. Reservation of a certain number of seats for women representatives in the ADCs must be made mandatory in order to end the exclusion of women from these political institutions. Further, while the Sixth Schedule aims to ensure the protection of customs as well as social and religious practices of tribes, it is necessary to keep in mind the implications of this protection for gender justice. Even though protecting tribal culture is a vital task and central to the objectives of the Sixth Schedule, this is not incompatible with equality and fairness.
Another important issue to be addressed is the question of representation of minority groups within the Councils. Even those groups which are indigenous to the region – such as smaller tribal groups – do not have any role in the ADCs, a situation which must be rectified. The population composition has changed everywhere over the decades. This demographic change is no longer reflected in the representative structure of the ADCs. Unless reviewed comprehensively, the Sixth Schedule could become one of the chief sources of future conflicts in the region.
Whereas the Sixth Schedule provisions have many positive features and tribes coming under the purview have done well, there are certain other structural constraints which
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have not allowed the Council to function as effectively as it should have been. Some key constraints as pointed above are non-transfer of departments to Autonomous Councils, lack of funds available with the Council, absence of provision for women and smaller tribal groups’ participation in Councils which need to be suitably addressed to ensure its more vibrant functioning.
On comparing the Fifth and Sixth Schedules, it is apparent that the provisions of the Sixth Schedule have given greater powers of political autonomy to the tribes of the Northeast, as was the intention of the Constituent Assembly. On examination of the working of the provisions of the Fifth Schedule, it has become clear that the institutional mechanisms for the protection of tribes living in Scheduled Areas have failed to meet its stated goals and is in need of serious review. The Governor as well as the Tribes Advisory Councils have not been performing their constitutionally assigned roles in spirit and have failed to adequately represent the interests of tribal communities. However, several clauses of the Provisions of Panchayats (Extension to Scheduled Areas) Act, 1996 and the Forest Rights Act provide for the enlargement of territorial rights and autonomy for Scheduled Tribes which must be fully implemented. On the other hand, while the provisions of the Sixth Schedule are extremely commendable, the workings of the Autonomous Councils, as has been demonstrated above, has been far from perfect and several aspects of their functioning – most notably, issues of financial and administrative autonomy, freedom from arbitrary government intervention, checks against ethnic sectarianism, greater representation for smaller tribes and women, and so on.
A restructuring of these institutional frameworks will go a long way in addressing the inequality, dispossession and injustice faced by tribal groups since self-governance, protective mechanisms, political representation and autonomous decision-making are critical components within the project to improve the socio-economic status of tribes.
4.9 Recommendations
1. During the colonial period, tribal communities inhabited areas were divided into ‘excluded’ and ‘partially excluded’ areas for purpose of administration. Such administrative arrangements have found continuation in post-independence India in the form of Sixth and Fifth Schedules of the Constitution. Laws enacted by the Governor-General in Council or Governor in Council were not automatically applicable in these areas in colonial India unless Governor General or Governor thought otherwise. In post-Independence India, this legal provision has been continued in Sixth Schedule Areas, but not in Fifth Schedule Areas. Thus, laws passed by the Parliament or State Legislature are not directly applicable in Sixth Schedule Areas unless the Governor thinks it desirable. In the Fifth Schedule Areas, laws passed by these bodies are automatically applicable, unless the Governor thinks it to be not in the interest and welfare of the tribal communities of the State. There have
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been laws and policies passed by the Parliament and State Legislatures such as the Forest Conservation Act, 1980, the Wildlife Protection Act, 1972, the Panchayat Acts (prior to the passing of the 73rd Amendment in 1992), and so on which have had an adverse and detrimental impact on tribal communities. Yet the Governors have not exercised their constitutional power towards the protection and welfare of the tribal communities. This opens up two possibilities:
(i) Laws and policies enacted by the Parliament and State Legislatures should not be automatically applied in the Fifth Schedule areas (as was the case under colonial rule or as is presently the case in the Sixth Schedule areas). Its applicability should be made contingent on the discretion of the Governor who would determine its applicability or non-applicability or applicability with modifications/amendments on the advice of Tribes Advisory Council and issue a Statement of Objectives and Reasons for decisions on both applicability and inapplicability of laws and policies.
(ii) In case the above is untenable, the Governor should be mandated to take the advice of the Tribes Advisory Council and examine legislations and policies (particularly, though not exclusively, those pertaining to issues such as forests, land acquisition, conservation, mines and minerals, health and education) passed by the Parliament or State Legislatures and the implications of the same on tribal welfare. A mechanism for such examination and action should be clearly stated and established.
2. Actions taken by the Governor for safeguarding the interests of tribal communities should be clearly mentioned in the annual Governor’s Reports submitted to the President. The Governors must be mandated to ensure the timely submission of these reports. To this end, the Governor’s office must be adequately assisted by specially set up competent and dedicated team in the form of Governor’s Cell for Scheduled Tribes (as has already been initiated in some States).
3. The Tribes Advisory Council is an integral part of the administrative structure of the Fifth Schedule. Currently, the TAC consists of 20 members, of which two-thirds is comprised of elected members in the State Legislature belonging to the Scheduled Tribes. The rest are nominated members who generally tend to be government officials working in Ministries and Departments associated with tribal development. In this regard, we recommend that:
(i) There needs to be a radical restructuring of the composition of the TAC. Instead of two-thirds elected members from the State Legislature, this should be restricted to half the members of the TAC. Moreover, these elected representatives must come from different political parties, rather than only from the ruling party. The remaining one-half should be comprised of Chairpersons of the district Panchayat bodies (or chairpersons of the
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Autonomous Council, wherever established) of the Scheduled Areas on a rotational basis.
(ii) Tribes Advisory Council should be empowered, made active and responsible for the tribal affairs in the State through the following measures:
The scope and responsibilities of TAC should be widened to transform it into the Tribes Advisory, Protective and Developmental Council. Constitutional provisions, laws, policies, and administrative matters pertaining to the Scheduled Tribes must come under its ambit.
The tribal development plan of a State and its outlay should be approved by the TAC before it is placed before the Legislative Assembly.
In view of the serious responsibility placed on the TAC, it should be made compulsory for the Council to meet at least four times a year.
The Tribal Welfare Department should be made accountable to the TAC. It should present its annual plan, budget and performance report to the TAC and receive its approval for the next year.
The agenda for the TAC meetings should be prepared through due consultation with the members.
The Governor should be made responsible for the overall functioning of the TAC.
4. The provisions of the Sixth Schedule provide considerable space for autonomy and self-governance. Through the Autonomous Councils, tribals have the opportunity to enact legislations, execute programmes and adjudicate at a scale larger than their individual villages. Such a provision has helped tribes of the Northeast to protect their habitat, land, forests, natural resources, culture and identity. They have not experienced displacement and land alienation on the scale that tribes in ‘mainland’ India have. In view of these powers of political autonomy, the tribal communities in the Northeast region have fared much better in respect of socio-economic, educational and health status.39 In contrast, the tribes in mainland have fared miserably in all these
spheres. Hence, there is an urgent need for extending the pattern of the Sixth Schedule in the form of Autonomous Councils in the Fifth Schedule areas as has been provided for in the Provisions of Panchayat (Extension to Scheduled Areas) Act, 1996. The specific provision notes that, “the State Legislature shall endeavour to follow the pattern of the Sixth Schedule to the Constitution while designing the administrative arrangements in the Panchayats at district levels in the Scheduled Areas”.
This pattern would provide tribal areas with an institutional structure that mediates between the State Government and hamlet-level Gram Sabha. There are various forms
39 There are several other reasons for this situation, most importantly, the relative homogeneity of the population in Northeastern
states, a tribal majority in many states and a history of missionary activity. However, the provisions of the Sixth Schedule have also made a significant contribution.
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of Autonomous Councils in the Sixth Schedule areas. These are represented by Meghalaya, Mizoram, Tripura and Assam. On the question of which pattern would best suit the ‘mainland’ tribal regions should be seriously deliberated and worked upon by the States with Fifth Schedule areas.
5. There are a large number of States wherein tribes form a sizeable population in blocks or villages, for example, in States like West Bengal, Kerala, Tamil Nadu, Karnataka, Goa, etc. Tribal areas in these States must be brought under the ambit of Scheduled Areas.
6. There are various impediments to the smooth and inclusive working of the Autonomous Councils in Sixth Schedule areas which must be addressed. In order to do so, we propose the following:
Autonomous Councils must be covered under State Finance Commission that
is empowered to review periodically the financial position and lay down appropriate principles of resource distribution between State and the Autonomous Council. Funding should not be left to arbitrary discretion of the State Governments.
The ADC should be reconstituted within six months of its dissolution.
There should be provision for reservation for tribal women (one-third) as well as smaller tribal groups in the ADCs and other political institutions.
Traditional political institutions at the village/hamlet level should be formally recognized by the State.
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