Union Territories

Constitutional Framework and Governance Dynamics of Union Territories in India

• UTs are specified in Schedule I Part II of the Constitution of India.
• 239 to 241 (Part VIII) deals with Union Territories of India.
• Under 1, the territory of India comprises:
  • territories of the states;
  • union territories; and
  • territories that may be acquired by India at any time.
• Union Of India – consists of only states.
• There are 28 states, 9 UTs and no acquired territories.
• Presently(2020),UTs of Puducherry, Delhi, J&K have legislative assemblies.
• Unlike UTs, states are the members of the federal system in India and share a distribution of power with the Centre.
• Existence of these territories constitutes a conspicuous departure from federalism in India; the Government of India is plainly unitary in so far as the relationship between New Delhi and these Central enclaves is concerned.
• Ministry of Home Affairs is the nodal Ministry for all matters of Union territories.
• Former UTs – Himachal Pradesh, Manipur, Tripura, Mizoram, Arunachal Pradesh and Goa.
• In Delhi, by Article 239AA and 69th Constitutional Amendment the Assembly cannot legislate on matters in entry 18 of the State List, which is land, public order and police.

Evolution of Union Territories in India: From Chief Commissioner Provinces to Administrative Transformations

• In 1956, ‘chief commissioners provinces’ of the British era were constituted as the ‘union territories’ by the 7th CAA(1956) and SRA(1956).
• Initially, the Constitution recognised four different categories of territories in Schedule 1: Former British India provinces (Part A), princely states (Part B), chief commissioner provinces (Part C) and the Andaman and Nicobar Islands (part D).
• SRC (1956) observed economically unbalanced, financially weak, and administratively and politically unstable territories can’t survive as separate administrative units.
• Andaman and Nicobar Island was the first UT of India (1956)
• SRC’s recommendations paved the way for the Central government to create India’s first six UTs (against just three recommended by SRC) in 1956.

Reasons Behind the Creation of Union Territories in India

• Political and administrative consideration–Delhi and Chandigarh.
• Cultural distinctiveness–Puducherry, Dadra and Nagar Haveli, and Daman and Diu.
• Strategic importance–Andaman and Nicobar Islands and Lakshadweep.
• Special treatment and care of the backward and tribal people–Mizoram, Manipur, Tripura and Arunachal Pradesh which later became states.

Diverse Administrative Structures of Indian Union Territories (ART.239)

• There is no uniformity in the administrative system of UTs.
• Every UT is administered by the President acting through an administrator (agent of the President and not head of state) appointed by him. (Art 239)
• The President can also appoint the governor of a state as the administrator of an adjoining union territory.
• L-G -> Delhi, Puducherry, A&N Islands, J&K and Ladakh.
• Administrator -> Chandigarh, Dadra-Nagar Haveli and Daman-Diu and Lakshadweep.

Special Provisions for Union Territories with a Focus on Delhi under Article 239AA

• Redesignated UT of Delhi as National capital territory & created legislative assembly with members.
• Designated the administrator of Delhi as the lieutenant (lt.) governor.
• Assembly shall make laws on matter enumerated in state list (Except matters of Public order, Police & land)
• Strength of the assembly is fixed at 70 members, directly elected by the people.
• Election commission of India conducts elections.
• Laws of Parliament prevail over those made by the Assembly (Except law of LA preserved for consideration of the President).
• Strength of the COM is fixed at ten per cent of the total strength of the assembly (seven–one chief minister and six other ministers)
• CM is appointed by the President (not by the Lt. governor).
• In the case of difference of opinion between the lt. governor and his ministers, the lt. The governor is to refer the matter to the president for decision and act accordingly.

Role and Functioning of Advisory Committees in Union Territories Without Legislature

• All the 5 UTs without legislature (A&N Islands, Chandigarh, Daman Diu and Dadra – Nagar Haveli, Lakshadweep and Ladakh) have the forum of Home Minister’s Advisory Committee (HMAC)/Administrator’s Advisory Committee (AAC).
• HMAC is chaired by the Union Home Minister,
• AAC is chaired by the Administrator of the concerned UTs.
• Members – MPs and elected members from the local bodies among others.

Merger of Dadra and Nagar Haveli with Daman and Diu as Union Territories Act, 2019

• Recently, Dadra and Nagar Haveli and Daman and Diu (Merger of Union Territories) Act, 2019 was passed.
• Act amends the First Schedule to merge the two union territories into the UT of Dadra and Nagar Haveli and Daman and Diu.
• Amendment to First Schedule of constitution is not recognized as a constitutional amendment under Article 368 of the constitution.
• First Schedule to the Constitution specifies the territories that come under various states and UTs.
• Article 240(1) – allows the President to make regulations for certain UTs, including the UTs of Dadra-Nagar Haveli and Daman-Diu.
• The First Schedule to the RPA, 1950 provides two seat in Lok Sabha to merge UT.
• Jurisdiction of the Bombay HC will continue to extend to the merged UT.

J&K REORGANISATION ACT 2019: Transforming Governance and Unity in the Union Territories

• State of J&K bifurcated two UTs – J&K(legislative assembly) and Ladakh (without a legislature) with Kargil and Leh districts.
• first L-Gof Ladakh and J&K- R.K Mathur Girish and Chandra Murmu, that of Jammu & Kashmir (J&K).
• Reorganisation act scrapped Art. 370 and Art. 35A.
• New UTs, Ladakh and J&K, officially came into existence on the 144th birthday anniversary of Sardar Vallabhai Patel(31st October 2019). This is the first time that a state has been divided into UTs.
• Flag and constitution of J&K, as well as the Ranbir Penal Code (RPC), cease to exist, with the IPC now extending to both UTs.
• The Parliament can make laws on any subject of the three lists for the union territories.
• LG would be empowered to “act in his discretion” in matters related to All India Services and Anti Corruption Bureau (ACB)
• Henceforth, the term of the UT of J&K would be for five years (from six years earlier)
• By area, Ladakh became the largest UT in India.
• The Legislative Council of J&K would be abolished. The number of seats to be filled through direct elections would be 107, which will be further enhanced to 114 after a delimitation exercise is carried out.

NOTE:

• Now, only six states have legislative assembly- Maharashtra, Uttar Pradesh, Andhra Pradesh, Telangana, Bihar and Karnataka.
• The legislative assembly of Puducherry can also make laws on any subject of the State List and the Concurrent List.
• The legislative assembly of Jammu and Kashmir can make laws on any subject of the State List (except public order and police) and the Concurrent List.
• The President can make regulations for the peace, progress and good government of the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu and Ladakh.
• The Constitution does not contain any separate provisions for the administration of acquired territories.
• Delhi is the only UT with its own High Court.

Comparative Governance Structures: States vs. Union Territories in India 

High Court Jurisdiction Across Union Territories 

Constitutional Framework and Governance Challenges: Scheduled and Tribal Areas in India 

A) Constitutional Imperatives in the Administration of Scheduled Areas in India 

• Article 244 (part X) – System of administration for certain areas designated as ‘scheduled areas’ and ‘tribal areas’.
• The Fifth Schedule of the Constitution deals with the administration and control of scheduled areas and scheduled tribes in any state except the four states of Assam, Meghalaya, Tripura and Mizoram .
• Administration of scheduled areas (Fifth Schedule) – The scheduled areas are treated differently from the other areas pertaining to inhabited by ‘aboriginals’ who are socially and economically backward, and special efforts need to be made to improve their condition.
• Whole of the normal administrative machinery operating in a state is not extended to the scheduled areas -> Extended by PESA 1996

Governance Framework and Constitutional Dynamics of Scheduled Areas and Union Territories in India

1. Declaration of Scheduled Areas:

• The President is empowered to declare an area to be a scheduled area.
• He can increase or decrease its area, alter boundary lines, rescind designation or make fresh orders for redesignation on an area in consultation with the governor of the state concerned.

2. Executive Power of State and Centre:

• Executive power of a state extends to the scheduled areas therein.
• The Governor has a special responsibility regarding such areas.
• Governors submit a report to the president regarding the administration of such areas, annually or whenever so required.
• Executive power of the Centre extends to giving directions to the states regarding the administration of such areas.

3. Tribes Advisory Council:

• Established by States having scheduled areas.
• To advise on welfare and advancement of the scheduled tribes.
• It consists of 20 members, three-fourths of whom are to be the representatives of the STs in the state legislative assembly.

4. Law applicable to Scheduled Areas:

• Governor is empowered to direct that any particular act of Parliament or the state legislature does not apply to a scheduled area or apply with specified modifications and exceptions.
• He can also make regulations for the peace and good government of a scheduled area after consulting the tribes advisory council.
• Such regulation may repeal or amend any act of Parliament or the state legislature, which is applicable to a scheduled area. But, all such regulations require the assent of the president.
• The Constitution requires the President appoints a commission to report on the administration of the scheduled areas and the welfare of the scheduled tribes in the states.
  • First commission appointed in 1960 – headed by U.N. Debar.
  • Second commission appointed in 2002 – Dilip Singh Bhuria.

CRITERIA FOR DECLARING SCHEDULE AREAS

• preponderance of tribal population;
• compactness and reasonable size of the area;
• under-developed nature of the area; and
• Marked disparity in economic standard of the people.

NOTE – Tribal Advisory Council is associated with Fifth Scheduled Areas and Autonomous District Council is an institution associated with Sixth Scheduled Areas. 

What challenges do fifth schedule areas and Union Territories face in Governance?

• Devolution of less powers viz-a-viz sixth scheduled areas.
• Lack of women’s representation in Tribal Advisory Councils.
• Irregularities in reports of governor to president.
• Lack of finances led to more dependency on the union government.
• Lack of judicial and legislative powers like 6th scheduled areas.
• Tribal advisory councils have only advisory powers to the state government and that too only on the matters referred to the council by the governor.

SUGGESTIONS/WAY FORWARD

• More and effective devolution of powers to councils.
• Greater financial autonomy to implement schemes effectively.
• Empowering local democratic institutions.
• Bringing Tribal advisory council at par with Autonomous District Councils of sixth schedule.
• Ensure many ethnic minorities are not excluded from representation in council.

NOTE – At present (2019), ten states of India have scheduled areas – Andhra Pradesh, Telangana, Jharkhand, Chhattisgarh, Gujarat, Himachal Pradesh, Madhya Pradesh, Maharashtra, Odisha and Rajasthan. 

B) Special Administration of Tribal Areas Under Article 244 (Part X) and the Sixth Schedule 

• 244 (Part X) – special system of administration for Scheduled Areas and Tribal Areas.
• The Sixth Schedule contains special provisions for the administration of tribal areas in the four north-eastern states of Assam, Meghalaya, Tripura and Mizoram.
• Presently (2019), there are a total of ten tribal areas in the above four states.
• Three Tier Mechanism – Regional council -> District council -> Village council.

FACTS AND STATS REGARDING TRIBALS IN INDIA -Tribal population- Constitute 8.6% of the nation’s total population, over 104 million people (2011 census)

• Poverty rate – about 40.5 percent tribals are BPL
• Literacy rate – about 59 percent (National avg- 73 percent)
• Sex ratio – 990 female/1000 males (nat. avg. 933)
• Tribal belts – MP (15 million) > MH (10 million) > OR > RJ

Provisions and Powers of the Sixth Schedule

• Autonomous districts: The tribal areas in these states have been constituted as autonomous districts, each of which has an autonomous district council and each autonomous region has a separate regional council consisting of 30 members (26 elected for 5 year term and 4 nominated by Governor). Currently, there are 10 such councils.
• Legislative power: To make laws on certain specified matters like land, forests, canal water, shifting cultivation, village administration, inheritance of property, marriage and divorce etc. with assent of the governor.
• Judicial power: Councils can constitute village councils or courts for trial of suits and cases between the tribes where the jurisdiction of high court over these suits and cases is specified by the governor.
• Regulatory power: District council can establish, construct or manage primary schools, dispensaries, markets etc. in the district. It can also make regulations for the control of money lending and trading by non-tribals. But such regulations require the assent of the governor.
• Tax revenue collection: District and regional councils are empowered to assess and collect land revenue and to impose certain specified taxes.
• Acts of Parliament or the state legislature do not apply to autonomous districts and autonomous regions or apply with specified modifications and exceptions.
• Governor can appoint a commission to examine and report on any matter relating to the administration of the autonomous districts or regions.

Recently, the cabinet approved a landmark amendment to Article 280 (Finance commission) and Sixth Schedule of the Constitution. The amendments will significantly improve the financial resources and powers of the autonomous district councils in Assam, Meghalaya, Mizoram and Tripura. 

5th Schedule Areas vs. 6th Schedule Areas in Indian Governance

Assessing Issues and Imperfections in Autonomous Councils of 6th Schedule Areas

• Shift in population composition not reflected in ADCs composition
• Irregularities in elections -> poor governance
• Lack of effective representation to women’s -> Non- inclusive growth
• Lack of codification of customary law
• Misappropriation of funds -Lack of auditing aggravates the situation.
• Lack of clarity in the role of Governor – on when the Governor should exercise his role on the basis of individual discretion.
• Overlapping functional responsibilities between the States and the District councils.
• Non-Representation and distorted representation of some tribes.

SOLUTIONS AND WAY AHEAD

• Restructuring composition of ADCs as per demographic pattern
• Delineating discretionary powers and role of governor
• Bring transparency in planning, implementation and monitoring of developmental programmes.
• Implementing XAXA committee recommendations
• Observing “Panchsheel Guidelines” (Golden Mean) w.r.t tribals.
• Integration of -> CAMPA + FRA + PESA

PVTGs in India: Recognizing and Safeguarding the Unique Identities

• The Debar committee in 1973 created a separate category among tribals.
• Total 75 PVTGs in India (2011 census). Highest PVTGs in Orissa

Unique Characteristics of PVTGs in Union Territories

• Mostly small and homogenous population,
• Relatively physically isolated,
• Absence of written language,
• Relatively simple technology
• Slower rate of change etc.

Empowering Tribals: Government Schemes Driving Socio-economic Progress

• Van-dhan scheme
• Eklavya residential schools
• National commission for ST. (Art. 338A)
• Aadi Mahotsav by TRIFED
• Tribal Sub Plan (TSP)

PHRASES FOR MAINS

• “Asymmetric Federalism”
• Mainstreaming marginalised
• Inclusive and participatory democratic model
• Isolation vs complete integration.

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