Renowned climate activist Sonam Wangchuk has long protested against environmental damage from industrialization and over-tourism in Ladakh. He advocates for Ladakh’s protection under the Sixth Schedule of the Indian Constitution. Recently, he was detained at the Delhi border while leading a group of protesters to petition the Central government. Similar demands for protection have also emerged in Arunachal Pradesh and Manipur.
Asymmetric Federalism in India
- Asymmetric federalism is a feature of the Indian Constitution, where some states and regions enjoy more autonomy than others. In contrast, countries like the U.S. or Australia have a symmetrical federal system, where all states have equal powers and autonomy.
- In India, certain states and areas, particularly in the northeast, have special provisions under the Constitution that grant them greater autonomy to govern themselves.
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Historical Background
- Pre-British Period: Before British rule, tribal populations were never fully subjugated by earlier Muslim rulers. These rulers largely refrained from intervening in tribal and forest life, including their customary laws and lifestyles.
- British Period: Before the British arrived, tribals were the undisputed masters of their forests and ancestral lands. However, the British sought to exploit India’s natural resources, which they viewed as lucrative.
- To facilitate this, the British introduced forest laws and policies that severely impacted the tribal way of life.
- These laws ignored the traditional rights of tribals over their forest lands, restricting their movement and making access to their own forests punishable.
- For tribals, the forest was their lifeblood, and the British restrictions seemed to strip them of everything they valued.
- This discontent led to several tribal uprisings, such as the Kol Rebellion (1831-32), Santhal Revolt (1855), Munda Rebellion (1899-1900), and Bastar Rebellion (1911).
- Pre-Independence Era: In response to repeated tribal rebellions, the British eventually adopted a policy of isolation towards the tribals. This led to the creation of ‘excluded’ and ‘partially excluded’ areas under the Government of India Act, 1935.
- Excluded areas: Mainly hilly regions in the northeast, where the power of legislation rested with the Governor, and British laws did not apply.
- Partially excluded areas: Tribal tracts in present-day Bihar, Bengal, Orissa, Madhya Pradesh, Uttar Pradesh, and Maharashtra, where central and provincial laws applied, but with modifications or exceptions decided by the Governors.
- Post-Independence: The Fifth and Sixth Schedules of the Indian Constitution are modelled after the provisions for ‘partially excluded’ and ‘excluded’ areas from the Government of India Act, 1935.
- Fifth Schedule: Grants autonomy to tribal areas, but with fewer powers compared to the Sixth Schedule.
- Sixth Schedule: Provides greater autonomy, especially to tribal areas in the northeast, allowing more self-governance and legislative powers.
Fifth and Sixth Schedules of the Indian Constitution
Fifth Schedule
- Definition: The Fifth Schedule of the Indian Constitution applies to areas officially designated as ‘scheduled areas.’
- These areas are declared by the President of India based on specific criteria.
- Criteria for Designation:
- Significant tribal population
- Compactness of the area
- Viability as an administrative unit (e.g., district or block)
- Economic backwardness
- Current Status: Currently, 10 states in India have designated scheduled areas.
- Tribes Advisory Councils (TAC)
- Composition:
- Consists of up to 20 members.
- Three-fourths of the members are tribal MLAs from the state.
- Role and Responsibilities:
- Provide advice on matters related to the welfare and advancement of Scheduled Tribes (ST) in these states.
- Role of the Governor: The Governor, with the approval of the Central government, holds significant authority in scheduled areas.
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- Responsibilities Include:
- Making regulations related to:
- Allotment and transfer of lands among members of the Scheduled Tribes.
- Regulation of money-lenders’ activities in these areas to protect tribal interests.
- Applicability of Parliamentary Laws: Laws passed by Parliament or the State Legislature do not automatically apply to scheduled areas.
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- The Governor has the power to:
- Direct whether a particular law applies in its entirety, with modifications, or does not apply at all in these regions.
Sixth Schedule
- Definition: The Sixth Schedule of the Indian Constitution applies to areas officially designated as ‘tribal areas’ in the states of Assam, Meghalaya, Mizoram, and Tripura.
- Currently, there are 10 such tribal areas in these four states.
- Autonomous District Councils (ADCs): For these tribal areas, Autonomous District Councils (ADCs) are established. These ADCs consist of 30 members, with not more than four members nominated by the Governor of the state, and the remaining 26 members elected by the people.
- Powers of the ADCs:ADCs have the power to make laws on matters such as:
- Land use and management
- Regulating shifting cultivation
- Inheritance of property
- Marriage and divorce
- Social customs
- Law Implementation: These laws take effect only after approval from the Governor.
- Additionally, state legislature laws do not automatically apply in these tribal areas unless extended by the ADC.
- For example, an act passed by the Assam government would not apply to the Garo, Khasi, or Jaintia areas unless approved by the respective ADCs.
- Administrative and Judicial Powers of ADCs: ADCs also have the authority to:
- Establish and manage primary schools, dispensaries, roads, and waterways within the district.
- Assess and collect land revenue and impose taxes on professions, trade, and more.
- Grant licences or leases for the extraction of minerals.
- Constitute village and district council courts to try cases where both parties belong to Scheduled Tribes within the district.
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| Note: The tribal areas under the Sixth Schedule enjoy greater autonomy through Autonomous District Councils (ADCs), which have more executive, legislative, judicial, and financial powers than the scheduled areas under the Fifth Schedule. |
Other Special Provisions for Northeastern States
- In addition to the Fifth and Sixth Schedules, several northeastern states have special provisions under Part XXI of the Indian Constitution. These are detailed in the following Articles:
- Article 371A: Nagaland
- Article 371B: Assam
- Article 371C: Manipur
- Article 371F: Sikkim
- Article 371G: Mizoram
- Article 371H: Arunachal Pradesh
These provisions offer various protections and responsibilities, such as:
- Protection of local customary laws and practices in Nagaland and Mizoram.
- The formation of committees of MLAs from ‘Tribal Areas’ in Assam and ‘Hill Areas’ in Manipur.
- The special responsibilities of the Governors of Sikkim and Arunachal Pradesh, particularly concerning development and the maintenance of law and order.
Suggestions
Despite the provisions enshrined in the Constitution, further reforms are needed to ensure the effective implementation of autonomy for the Fifth and Sixth Schedule areas.
- Autonomy in Practice: The autonomy granted to areas under the Fifth and Sixth Schedules often exists more on paper than in practice.
- In scheduled areas, regulations made by the Governor require Central government approval, while laws passed by Autonomous District Councils (ADCs) in tribal areas need the Governor’s approval.
- Political differences between the Centre, State, and ADCs can lead to delays or non-implementation of laws.
- To ensure genuine autonomy, clear guidelines must be established and adhered to for both schedules.
- Notified Scheduled Areas: Many Scheduled Tribe (ST) habitations in India, both within the 10 states under the Fifth Schedule and in other states, are not notified as ‘scheduled areas.’
- Consequently, these areas are denied the constitutional rights and protections they deserve.
- A thorough review process is necessary to notify these areas as ‘scheduled areas’ after proper due diligence.
- 125th Constitutional Amendment Bill (2019): The 125th Constitutional Amendment Bill, currently pending in the Rajya Sabha, seeks to grant more financial, executive, and administrative powers to the 10 existing ADCs.
- The Union government has formed a committee, headed by the Minister of State for Home Affairs, to resolve the issues delaying the bill’s passage. This process must be expedited to satisfy all stakeholders, empowering ADCs with more resources and authority.
- Demands for Sixth Schedule Inclusion: In recent years, the Arunachal Pradesh Assembly and the Manipur Hill Area Committee have passed resolutions seeking inclusion in the Sixth Schedule for their respective ‘Hill Areas.’
- Similarly, there is a growing demand for the Union Territory of Ladakh to be included in the Sixth Schedule.
- These demands should be examined promptly, and appropriate decisions must be made to protect the interests of tribals in these areas.
- A common policy could be devised to determine which areas should be included under the Fifth or Sixth Schedule to avoid confusion.
- Forest Rights Act (2006): The Forest Rights Act of 2006 recognizes the rights of tribals and other forest dwellers who have lived in forests for generations, granting them rights over forest land and its produce, with provisions for the allotment of up to four hectares of land.
- The implementation of these rights must be ensured across the country, including in Fifth and Sixth Schedule areas, to guarantee protection for forest-dwelling communities.
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Conclusion
The demand for Ladakh’s inclusion under the Sixth Schedule reflects a broader need to protect indigenous rights and grant genuine autonomy to tribal regions. Timely reforms and clearer guidelines are essential to uphold the constitutional promise of safeguarding tribal culture and ensuring sustainable development.
October 3, 2024
