Constitutional safeguards Scheduled tribes – Anthropology by K.V RAMESH

Constitutional safeguards Scheduled tribes

Definitions

✓ Article 366 (25)-Definitions of Scheduled Tribes
Scheduled Tribes means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution;

✓ Article 342-Scheduled Tribes
(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause ( 1 ) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification

Social and Cultural protections

✓ Article 15(4)
Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes

✓ Article 16(4)
Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State

✓ Article 19(5)
Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe

✓ Article 23
Prohibition of traffic in human beings and forced labour

✓ Article 29-Protection of interests of minorities
Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same
▪ No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them

Educational development

✓ Article 46
The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation

Economic Progress

✓ Article 275
Grants under Article 275(1) of the Constitution of India provides such sums as Parliament may by law provide shall be charged on the consolidated Fund of India in each year as grants-in-aid of the revenues of such States as Parliament may determine to be in need of assistance, and different sums may be fixed for different States:
Provided that there shall be paid out of the Consolidated Fund of India as grants-in-aid of the revenues of a State such capital and recurring sums as may be necessary to enable that State to meet the costs of such schemes of development as may be undertaken by the State with the approval of the Government of India for the purpose of promoting the welfare of Scheduled Tribes in that State or raising the level of administration of the Scheduled Areas therein to that of the administration of the rest of the areas of that State”.

✓ Article 335-Claims of Scheduled Tribes to services and posts The claims of the members of the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State

Political advancement

✓ Article 164
Provided that in the State of Jharkhand, Chhattisgarh ,Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work

✓ Article 243 D
Seats shall be reserved for the Scheduled Tribes, in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the, total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat

✓ Article 243 T
Seats shall be reserved for the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality Not less than one third of the total number of seats reserved under clause (1 ) shall be reserved for women belonging to the Scheduled Tribes The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide

✓ Article 330
Reservation of seats for Scheduled Tribes in the House of the People

✓ Article 332
Reservation of seats for Scheduled Tribes in the Legislative Assemblies of the States

✓ Article 334
Reservation of seats and special representation to cease after sixty years Originally the reservation for seats in scheduled castes and scheduled tribes in Lok Sabha and State assemblies was up to 1960. But it was successively amended by 8th, 23rd, 45th, 62nd, 79th and 95th amendment of the constitution’s article 334 to extend this period of reservation.

✓ Article 338A-National commission for Scheduled Tribes
There shall be a Commission for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes. It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes under this Constitution and report to the President upon the working of
those safeguards at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament

✓ Article 339(1)-Control of the Union over the administration of Scheduled Areas and the welfare of Scheduled Tribes
The President may at any time and shall, at the expiration of ten years from the commencement of this Constitution by order appoint a Commission to report on the administration of the Scheduled Areas and the welfare of this Scheduled Tribes in the States The order may define the composition, powers and procedure of the Commission and may contain such incidental or ancillary provisions as the President may consider necessary or desirable
The executive power of the Union shall extend to the giving of directions to a State as to the drawing up and execution of schemes specified in the direction to be essential for the welfare of the Scheduled Tribes in the State

✓ Article 244- Vth Schedule
Administration of Scheduled Areas and Tribal Areas
The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam, Meghalaya, Tripura and Mizoram

✓ Article 244 (A)-VIth schedule
Formation of an autonomous State comprising certain tribal areas in Assam, Meghalaya, Tripura and Mizoram and creation of local Legislature or Council of Ministers or both therefor

✓ Article 371 A
Special provisions for Nagaland

✓ Article 371 B
Special provisions for Assam

✓ Article 371 C
Special provisions for Manipur

✓ Article 371 G
Special provisions for Mizoram

✓ Article 371 H
Special provisions for Arunachal Pradesh

The Fifth Schedule
The basis of the Fifth Schedule of the Constitution can be traced back to the laws of the British colonial government designating certain parts of the sub-continent ‘backward tracts’ and ‘partially excluded areas’. The latter term was incorporated into the Constitution and it is within these tracts labelled Scheduled Areas (wherein a large number of Scheduled Tribes reside, alongside other relevant
criteria) that the Fifth Schedule is applicable. The debate around the Fifth Schedule, its relevance and its efficacy vis-à-vis the intentions of the Constitution makers are as contentious today as they were during the debates of the Constituent Assembly.

During the debates regarding the provisions of the Constitution of the modern Indian nation, the issue of the administration of the Scheduled Tribes generated heated debates on the post-colonial State’s policy toward and legislation on adivasi communities. Largely, nationalist leaders and social reformers favoured the assimilation of tribals into ‘mainstream’ Indian society, and their views were pitted against those of the British administrators and anthropologists who advocated isolationism or protection. These contrasting positions were reflected in the famous debate between G.S. Ghurye and Verrier Elwin in which the latter argued for a policy of protection of the ‘tribal way of life’ and the former stated that those in favour of isolation sought a revival of the past, and that Elwin’s position ignored the histories of tribal migration and intermingling with non-tribal populations. While both views were heard out, the policy ultimately adopted was a middle ground of ‘controlled integration’, the middle ground advocated by then Prime Minister Shri. Jawaharlal Nehru. There was, therefore, recognition of difference, even if this was done in the pursuit of its eventual erasure. An approach of simultaneous ‘protection’ and ‘uplift’ was stressed. The belief that tribal areas required special laws led to the setting up of the Advisory Committee on Fundamental Rights and Minorities by the Constituent Assembly, 1947. This body appointed three sub-committees in 1947 to look into specific tribal areas and make suggestions for their administration and functioning.

✓ The first was authorized to look into the excluded and partially excluded areas ‘other than Assam’ and was headed by Shri. A.V. Thakkar. This was incorporated as Fifth Schedule.
✓ The second committee to examine tribal areas within undivided Assam chaired by Shri. Gopinath Bardoloi. This was incorporated as Sixth Schedule
✓ The third was to analyse the situation of tribes in the North Western Frontier Province.

The report of the Joint Sub-Committee described tribal society as “lacking in such civilizing facilities as roads, schools, dispensaries and water supply”. Tribal people are described as “extremely simple people who can be and are exploited with ease by plains folk”. Hence, a policy of protectionism would be necessary since “sudden disruption of the tribal customs and ways by exposure to the impact of a more complicated and sophisticated manner of life is capable of doing great harm” At the same time, it was argued that isolationism was not the solution since only a continuous process of assimilation into mainstream Indian (and Hindu) society would lead to their ‘development’. The debate on the tribal question took place on 5th and 6th September, 1949 and the main focus remained on this issue – “reconciling the diversity of custom with the ‘national life of the country”.

The Fifth Schedule (Article 244(1)) of the Constitution finally adopted by the Constituent Assembly did not include several of the recommendations of the subcommittees and Assembly members. The Fifth Schedule contains provisions relating to the administration of Scheduled Areas other than in Northeast India.
• First, areas can be designated Scheduled Areas on the order of the President, who can similarly declare that certain parts of/entire Scheduled Areas cease to be such.
• Second, the Governor of each State having Scheduled Areas shall annually, or whenever required by the President of India, submit a report to the President regarding the administration of Scheduled Areas.
Currently, certain parts of nine States of the country are covered by the Fifth Schedule.

Part B of the Fifth Schedule provides for the creation of a Tribes Advisory Council (TAC) in each State having Scheduled Areas (and if the President directs, also in States having Scheduled Tribes but not Scheduled Areas), consisting of twenty members of which three-fourths must be representatives of Scheduled Tribes in the Legislative Assembly of that State. The duty of the TAC is to advise on matters pertaining to the “welfare and advancement” of the Scheduled Tribes “as may be referred to them by the Governor”.

Further, the Fifth Schedule grants extensive powers to the Governor who, by public notification, may direct that a law enacted by the Parliament or the State Legislative Assembly shall not apply to a Scheduled Area, or may apply subject to certain amendments or restrictions as he/she specifies. The Governor may only make such regulations on consultation with the concerned Tribes Advisory Council and subject to the final assent of the President. The section states: The Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. In particular and without prejudice to the generality of the foregoing power, such regulations may-
(a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area; (b) regulate the allotment of land to members of the Scheduled Tribes in such area; (c) regulate the carrying on of business as moneylender by persons who lend money to members of the Scheduled Tribes in such
area.

These provisions were viewed as essential in view of the historical fact that adivasi livelihoods depend on the land and that alienation of resources had led to considerable impoverishment of adivasis during the colonial period. Nonetheless, the initial recommendations of the committees and the earlier draft of the Fifth Schedule accorded far greater autonomy to tribal areas than the final version, which watered down the role of the Tribes Advisory Council to a mere consultant rather than an autonomous decision-making body. A Member of the Constituent Assembly, Shri. Jaipal Singh, had argued against this version of the Schedule and demanded instead: a statutory obligation that a report on the Scheduled Areas and Tribes be submitted by the Governor annually, that TACs be compulsorily set up in all States having Scheduled Tribes and not just in those States having Scheduled Areas, that the Governor should be bound to carry out the decisions of the TAC regarding the modification and amendment of laws made by Parliament
or the State Legislature. Singh noted that the new draft (the one finally incorporated into the Constitution) made the Fifth Schedule considerably less powerful than he had hoped and “emasculated the Tribes Advisory Council”.

Lamenting the lack of powers to the tribal people themselves and their representatives in the TAC, Singh stated: “The whole pattern of the original draft was to bring the Tribes Advisory Council into action. It could initiate, originate things, but, somehow or other, the tables have now been turned. The initiative is placed in the hands of the Governor or Ruler of the State.”
Another Constituent Assembly member, Shri. Yudhishtir Misra, held that the TAC should not only be allowed to advise on the “welfare and advancement” of tribes, but also more broadly on the administration of the Scheduled Areas. Moreover, Misra warned that the advisory powers of the TAC should not be circumscribed by the whims and fancies of the executive as seemed likely given the current form of the Fifth Schedule – which states that the TAC can only advise on matter referred to it by the Governor. However, their suggestions were refused by their colleagues in the Assembly who believed that the work of the TAC must not be of a political nature on the grounds that it might lead to separatism and that tribals would not themselves be able to comprehend the complexities of lawmaking. Rather than grant genuine autonomy to tribal India, the Fifth Schedule paternalistically placed their welfare in the hands of a representative of the Centre.

Unlike the Sixth Schedule wherein Autonomous District Councils have been given significant legislative, judicial and executive powers on several important matters, the Fifth Schedule places the governance of tribal areas in ‘mainland’ India largely in the hands of the Governor. This occurred for two reasons: one,
mainland areas had large non-tribal populations and two, the tribes of the Northeast were seen as more advanced and capable of self-governance unlike the tribes in other parts of the sub-continent. As a result, tribes were given ‘protection’ from outside intrusions and land alienation but were not granted much autonomy on political and economic matters.

Governor’s Report

Over the years, States with Scheduled Areas have developed a framework around which the Governor’s reports are to be presented. According to the Scheduled Areas and Scheduled Tribes Commission Report (2002-2004), the Governor’s report is expected to contain an objective and independent assessment of the quality of the administration of Scheduled Areas, the implementation of protective safeguards for tribals, and the regulations made by the Governor in keeping with his powers under the Fifth Schedule. It should further cover issues of displacement and rehabilitation, law and order problem, tribal protests, atrocities against tribes, and so on. This report is required to be placed before the TAC for their advice and recommendations. On the basis of this Report, the Union Government may issue directives to the State Governments for better administration of these areas.

According to the Bhuria Commission Report (2002-2004), at the time of their writing, the States of Andhra Pradesh and Madhya Pradesh did not send their reports since 1999-2000, while Maharashtra and Orissa had not sent theirs from 2000-2001 onward. Only Himachal Pradesh has submitted its report regularly. In more recent years, the Ministry of Tribal Affairs reports that, as of 25.5.2013, it had received Governor’s Reports for the year 2011-12 only from Gujarat and was still awaiting reports from the other eight States. Maharashtra had not submitted its report for the previous year 2010-11 either.

Even when the reports are sent regularly, there have been several questions raised regarding the quality and value of the reports. Critics have pointed out that the reports are repetitive, casually and haphazardly constructed and tend to borrow heavily from reports of the tribal welfare department, merely listing out the schemes and programmes for tribal development without even examining their implementation and efficacy on the ground. Pressing issues such as the impacts of insurgency and counter-insurgency on tribal populations and displacement by big industry rarely find mention. The Governor’s Reports offer quantitative rather than qualitative or analytical data about the status of tribal administration in the concerned States – even the statistical information presented relates to the flow of development funds to tribal villages and the number of beneficiaries of government welfare schemes. The reports do not offer an independent assessment of the policies of the State Governments vis-à-vis Scheduled Areas and instead seem to uncritically accept government claims of tremendous achievements with regard to tribal development.

A confidential report sent to the President by the National Commission for Scheduled Tribes (accessed by Down to Earth magazine in 2013) has also complained of the failure of Governors in performing their administrative duties to ensure self-governance in tribal areas. The National Commission advocated that Governors be made more accountable with regard to their roles vis-à-vis Scheduled Areas, namely ensuring the implementation of constitutional provision protecting tribal rights. Most importantly, the Governor should ensure that all laws which contradict the constitutional protections for tribals should be repealed or modified in Scheduled Areas. The NCST further recommended that the Ministry of Tribal Affairs prepare a detailed format for submission of the Governor’s reports which could include a review of all Central and State laws and their compatibility with Constitutional provisions for Scheduled Tribes and
consultation with the TACs. Other experts have also advocated the inclusion of an Action Taken Report (ATR) for the previous year in the report of the subsequent year. Where such regulations have been made, they primarily pertain to control of land alienation and money lending in tribal areas and do not venture
to cover the spectrum of issues that may be covered under the “peace and good government” of the area. There are several instances in which the Governor has exercised his powers to make regulations. In Odisha, these regulations have included the Odisha Scheduled Areas Transfer of Immovable Property (By
Scheduled Tribes) Regulation 1956, Odisha Scheduled Area Money-Lenders Regulation 1967, and the Odisha Schedule Area Debt Relief Regulation. However, reviews of the implementation of these regulations (as well as similar laws seeking to stem land alienation and money-lending in tribal areas) points to their failure owing to excessive dependence on the powerful mainstream bureaucracy unwilling to acknowledge tribal rights over land and forest. More recently, the Bhuria Commission Report has further recommended the inclusion of another subject under which the Governor could exercise his powers – for the regulation of trade and commerce in the Scheduled Areas of the State. In April 2012, Union Minister for Tribal Affairs, Dr. V. Kishore Chandra Deo requested the Governor of Andhra Pradesh, Shri. E.S.L Narsimhan, to use his powers under the Fifth Schedule to cancel a Memorandum of Understanding (MoU) signed by the Government for bauxite mining in Fifth Schedule areas of
Visakhapatnam district. It has also been noted that when Governors do exercise their Fifth Schedule powers, it is only on the advice of the Council of Ministers. Activists have complained that Governors never respond to petitions calling for their intervention in cases of land conflicts, acquisition for mineral extraction and police atrocities against tribal communities.

In order to assist the Governor in the fulfilment of the Constitutional duties of his/her office, the creation of a special Governor’s Cell to work specifically on issues pertaining to the Scheduled Tribes has begun in several States. The governments of Chhattisgarh, Jharkhand, Maharashtra and Rajasthan have informed the Ministry of Tribal Affairs that they have constituted the Governor’s Cell in their States, although the details of their functioning are not yet known.

The Governor’s Office in Andhra Pradesh has noted that there is no need for such a cell in the State since the Tribal Welfare department is capable of performing the same duties. The State of Madhya Pradesh has informed the Ministry that there was no consensus on the creation of such a cell. According to the
Government of Himachal Pradesh, such a cell has already been formed in their State.

The formation of the Governor’s Cell is a longstanding necessity in order for the Governor to properly carry out the duties of the post vis-à-vis protection of the tribes. It is imperative that the Cell be set up in all the Fifth Schedule States and that these Cells function independently and conscientiously. Most importantly, the Cell should be prevented from becoming simply another bureaucratic institution among many performing its tasks mechanically with little autonomy or interest in tribal affairs.

Tribes Advisory Councils

These Councils have been set up in all the nine States having Scheduled Areas as well as two other States, West Bengal and Tamil Nadu, both having sizeable tribal populations. As discussed above, there are several shortcomings inherent in the structure and mandate of the TACs as laid down in the Constitution. Firstly, the TACs can only discuss and make recommendations on those issues which are referred to it by the Governor. Secondly, it functions only in an advisory capacity and has no power of implementation. Thirdly, the Councils are not accountable to the tribal population given that they are appointed by the Governor or the State Government.

A detailed study of the minutes of the meetings of the Tribes Advisory Councils by the Asian Indigenous and Tribal Peoples’ Network (2012) reveals that the meetings of the Councils are almost tokenistic and critical issues (such as land alienation) are rarely discussed. Further, the resolutions of the Councils are not followed up in subsequent meetings and the implementation of their recommendations is not independently verified. The issue of the representativeness of the TACs is also a central issue – while three-fourths of the members are to be tribal MLAs from the concerned State, the non-official, nominated members include the Chief Minister of the State (often the Chairperson of the TAC) and bureaucrats.

The States’ rules for the appointment of members hold that they shall be appointed, either by the State Government (Rajasthan Tribes Advisory Council Rules) or the Governor (Andhra Pradesh TAC Rules and Jharkhand TAC Rules) with no specifying criteria. It is the State Governments rather than the Governor
which have framed the rules regarding TAC functioning which has led to the near complete usurpation of these bodies by the political parties in power both in terms of representation within the Councils as well as the issues that are taken up for discussion.

The Gujarat Tribes Advisory Council Rules, 1960 provides that “No business shall be transacted and no proposition shall be moved or discussed at any meeting, unless it has been specified in the notice for convening the meeting.” The Jharkhand Tribes Advisory Council Rules states that only those matters shall be discussed in the Council which has been referred to the Council by the Governor for advice.

The Andhra Pradesh TAC (as of 2009) consists of the Minister of Tribal Welfare, Andhra Pradesh (Chairperson); the Principal Secretary to Government of Andhra Pradesh (TW), Social Welfare Department (Member); the Director for Scheduled Castes and Scheduled Tribes, Government of India (Member); the Director of Tribal Cultural Research and Training Institute, Hyderabad (Member); the Commissioner of Tribal Welfare, Government of Andhra Pradesh (Member Secretary); and 15 tribal MLAs. The Chhattisgarh TAC (as of 2009) comprises the Chief Minister (Chairperson), the Minister of Scheduled Tribes and Schedule Caste Development Department (Vice Chairperson); 15 Scheduled Tribe MLAs (Members); three Members of Parliament (nominated as Members); and Secretary, Scheduled Tribes and Schedule Caste Development Department, Chhattisgarh government (Secretary). Clearly then, a large portion of the
members are State functionaries and there are few independent persons with experience and expertise on tribal issues who are nominated to the Council. Further, the members of the TAC have few powers even in terms of what can be discussed at the Council meetings. For instance, the Chhattisgarh TAC rules states that, apart from matters referred to it by the Governor, “No issue shall be taken up for discussion and included in the proceedings and no proposals shall be passed in a meeting unless the issue has been mentioned in the notice for the meeting, however, the Chairperson can, using his discretion, permit such issues to be taken up for proceedings, that he thinks necessary and are in the direction of the motto of the Council at large but was excluded in the notice.” The Bhuria Commission Report (2002-04) places on record the dismay of some members of various State Councils who complain that the State Government do not put any important matters to the Council for advice. In all these years of its functioning, the TACs have rarely made any significant policy proposals or recommendations on tribal and developmental issues.

Even when issues are taken up by the TAC, it has been noted that there is rarely any sustained and consistent engagement with the matter in the form of followups and field visits. As per the minutes of their meetings, none of the TACs discussed the issue of land alienation among tribals between the years 2005 and 2011. In the case of the Himachal Pradesh TAC, an excess of items were placed before the Council for discussion but many seem to have been subject to only a cursory examination and no decisive conclusions were reached. For example, the Asian Indigenous and Tribal Peoples’ Network (AITPN) report notes that at the 36th meeting held on 12 May 2006, 102 items were discussed; 104 items were discussed at the 38th meeting on 2 August 2007, and 88 items (including 21 follow up items and 67 new items) were discussed in the 40th meeting held on 15 May 2010. As a result, no single issue or group of issues could be seriously analysed and few concrete decisions could be made or implemented.

In 2012, the extremely limited powers of agenda-setting within the TAC came to the fore when two members of the Jharkhand TAC walked out of a Council meeting on the grounds that the Chairman of the TAC was uninterested in taking up serious problems of the tribal population. The specific matter which the
members protested was land acquisition at Nagri for construction of India Institute of Management (IIM) and National University for Study and Research in Law. The Chairperson, however, did not allow discussion on the subject, stating that it be brought before the Council in writing first. The Chairperson’s
statement was countered by the members on the grounds that several memorandums had been submitted to the Council already and hence, must be placed for discussion.

There continue to be complaints regarding the legal and actual powers of the Governor with regard to the TAC as well on the point of issues to be discussed within the Council. While the Constitution holds that the TAC can hold deliberations on matters referred to it by the Governor, experts have argued over
whether the Governor as the Constitutional head of the State can make this referral on his own discretion or only on the advice of the Council of Ministers.

The question is central since the answer could shape future interpretations of the Fifth Schedule as well as the extent of control of various State Governments over the functioning of TACs. In recent years, the Central Government itself has given two contradictory interpretations on this issue since, in 2010, the AttorneyGeneral Shri. G.E. Vahanvati opined that the Governor did have discretionary powers, but in 2013, the Assistant Solicitor-General, Smt. Fouzia Mirza stated that the Governor can employ his powers on the aid and advice of the Council of Ministers and not at his own discretion. This statement was made to a Public Interest Litigation (PIL) filed by activist Shri. B.K. Manish in the Chhattisgarh High Court (later dismissed) questioning the un-Constitutional functioning of the TACs, which was later argued through a Special Leave Petition (SLP) in the Supreme Court. In light of this case, the Ministry of Law and Justice issued a circular to all law officers in July, 2013 clarifying that Attorney General Shri. Vahanvati’s opinion affirming the discretionary powers of the Governor was the official stand of the Government of India.Even when serious debate does occur at the TAC, the Council does not follow up on latest development and implementation on their recommendations.

The Andhra Pradesh TAC took up the matter of the Polavaram project at its meeting in February 2007 and made the following resolutions: that all landless families to be displaced by the project should be given land in the resettlement areas, resettlement land should be identified in consultation with tribals, a publicity campaign on the R&R package should be held in all affected villages, and the TAC members should visit these villages. Between that meeting and their meeting in March 2011, however, no further inquiry or discussion of the issue was initiated and the matter seems to have been forgotten entirely. Since the formation of the first TAC in Andhra Pradesh in 1958 until January 2012, 105 meetings of the Council have been held. But since 2006, the APTAC has stopped examining the action taken on decisions made in previous meetings, as was the practice earlier. The concerned departments do not always submit
Action Taken Reports to the TAC and therefore, the earlier decisions and recommendations of the TACs, even when implemented, are not revisited in subsequent meetings (as reflected in the minutes). This is true of the Councils in almost all of the States.

4.6 Legal and Administrative Structures in Northeast India

Northeast India, home to numerous diverse ethnic groups and located strategically with borders with Bhutan, China, Myanmar and Bangladesh. Historically, tribes of this region have seen “isolationist” policies of the colonial British who labelled many hilly tribal tracts of the Northeast as “wholly excluded” areas. While the tribal-dominated areas in what is commonly referred to as ‘mainland’ India are largely governed by the provisions of the Fifth Schedule, the States of the Northeast are covered by the Sixth Schedule of the Constitution as well as a host of other legal and administrative arrangements for the protection of tribal autonomy.

As early as 1929, the Nagas submitted a petition to the Simon Commission, asking for autonomy from the future Indian nation-state. Other tribes such as the Khasis and the Mizos called for self-governance on issues such as customary laws, control over resources and so on, while also demanding separation from the larger State of Assam. Several tribes including the Nagas, Mizos, Garos, Khasis and Karbis were (and, in some cases, still are) demanding a united homeland for all their fellow tribes people who are spread across several Indian States and even across international borders.

Some of the other demands made by tribes in this region are: protection against land alienation by settlers, continued authority of traditional Councils, and safeguards against the erosion of their cultures.

The British philosophy of maintaining status quo and isolation was replaced by policies of development and integration of the Northeast through the Sixth Schedule of the Constitution. The Schedule was drafted by a Sub-Committee of the Constituent Assembly called the Northeast Frontier (Assam) Tribal and Excluded Areas Sub-Committee headed by Assamese political leader, Shri. Gopinath Bardoloi. The sub-committee aimed to “…reconcile the aspirations of the hill people for political autonomy with the Assam government’s drive to integrate them with the plains”. The Sixth Schedule is entirely focused on protection of tribal areas and interests, by recognising self-governance through constitutional institutions at the district or regional level.

The Sixth Schedule provides for the creation of Autonomous District and Regional Councils and accords a host of legislative, executive and judicial powers to these autonomous bodies. It applies to certain tribal areas of the States of Assam, Meghalaya, Tripura and Mizoram. Apart from the Sixth Schedule, there are other constitutional provisions in the Northeast such as Article 371-A in Nagaland which provides autonomy on issues of religious and social practices, customary law, civil and criminal justice and ownership of land and resources. Similar provisions are operational in the State of Mizoram under Article 371- G, although parts of Mizoram are also covered under the Sixth Schedule. Manipur is governed by Article 371-C as well as the Manipur (Hill Areas) District Council Act, although this does not compare with the considerable autonomy conferred on tribal areas by the Sixth Schedule. Additionally, traditional political institutions are present alongside constitutional bodies. These include the institution of Syiems among the Khasi, the Daloi among the Jaintias and Nokma among the Garos of Meghalaya, Khulakpa among the Nagas, and Haosa, Semang and Pachong amongst the Kukis of Manipur.

The following table outlines briefly the various legal and administrative structures in place in the States of the Northeast region:

State	Legal and administrative structures
Arunachal Pradesh	Article 371H, No Autonomous Councils, Panchayati Raj Institutions
Assam	Sixth Schedule, Article 371B, Three Autonomous Councils
Manipur	Article 371C, Manipur Hill Village Authority Act and Manipur Hill Areas District Council
Mizoram	Sixth Schedule, Article 371G, Three Autonomous Councils
Meghalaya	Sixth Schedule, Three Autonomous Councils
Mizoram	Sixth Schedule, Article 371G, Three Autonomous Councils
Nagaland	Article 371A and Article 371AA, No Autonomous Councils but Village Councils in each major village
Tripura	Sixth Schedule, One Autonomous Council for all tribes (Tripura Tribal Areas Autonomous District Council)

Broadly, there are three types of legal typologies of administration of local selfgovernment in North East States. These are Sixth Schedule Frame, State Legislation Frame, and National Frame. Sixth Schedule covers the entire Meghalaya except Shillong, parts of Mizoram, Tripura and Assam. Local Self Government of Nagaland and the non-Council areas in Mizoram fall under the State Legislation frame. Local self-government of Arunachal Pradesh, Sikkim, Manipur (excluding the hill area covered under Hill Area Autonomous Council) and non-Council areas of Assam and Tripura are covered under the National
Frame.

Two types of Autonomous District Councils are found in the Northeast States. These are the Autonomous District Council set up under the Sixth Schedule and Autonomous District Council established by various Acts of the State Legislative Assembly which are not under Sixth Schedule.

Assam has three Autonomous Councils under the Sixth Schedule: Dima Hasao District Autonomous Council (DHDAC), the Karbi Anglong Autonomous Council (KAAC), and the Bodoland Territorial Council (BTC).
The entire State of Meghalaya except Shillong area is covered under the provisions of the Sixth Schedule of the Constitution. Meghalaya has three Autonomous District Councils under the Sixth Schedule of the Constitution. These are – Khasi Hills Autonomous District Council (KHADC), Garo Hills Autonomous District Council (GHADC), and the Jaintia Hills Autonomous District Council (JHADC).
There are three Autonomous District Councils in Mizoram under Sixth Schedule. They all cover two administrative districts namely Lawngthlai and Saiha districts. These three Autonomous District Councils are the Chakma Autonomous District Council (CADC), the Mara Autonomous District Council (MADC), and the Lai Autonomous District Council (LADC).
The Tripura Tribal Areas Autonomous District Council (TTAADC) is an independent Council administering the tribal areas of the State of Tripura under the Sixth Schedule.

There are other Autonomous Councils in Assam and Manipur. These are established by Acts passed in the State Legislative Assembly. Assam has 6 other Autonomous District Councils and Manipur has same number of Hill District Councils. There are also special provisions envisaged in the Constitution of India which can be classified as “Temporary, Transitional and Special Provisions”.

The Sixth Schedule

The original Sixth Schedule areas created in 1952 underwent a drastic reorganization in 1971; some areas were put under newly created States such as Mizoram and Meghalaya which were carved out of the erstwhile Assam State. The Sixth Schedule (Article 244 (2) and 275 (1)) provides for administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram through Autonomous District and Regional Councils endowed with legislative, judicial, and executive powers.

The Sixth Schedule under Article 244 (2) provides for the creation of Autonomous District Councils (ADC) in an Autonomous District and Regional Councils for autonomous regions. These Councils have legislative powers on matters relating to:

allotment, occupation, or the setting apart of land, other than reserved forests, for the purpose of agricultural or grazing or for residential or other nonagricultural purposes or for any other purpose likely to promote the interests of the inhabitants of any village or town (Provided that nothing in such laws shall
prevent the compulsory acquisition of any land, whether occupied or unoccupied for public purpose)
management of any forest not being a Reserved Forest
use of any canal or water course for purpose of agriculture
regulation of the practice of jhum or any other form of shifting cultivation
establishment of village or town committees or Councils and their powers
any other matter relating to village or town administration, including village and town police, public health and sanitation
appointment of succession of chiefs or headmen
inheritance of property
marriage and divorce
social custom

The Council has legislative powers over matters such as primary education, dispensaries, markets, cattle pounds, ferries, fisheries, roads, road transport and waterways. The District Council can regulate money lending and trading by nonresidents or non-tribal people living in the area. It has the power to collect taxes and tolls on land, buildings and persons, professions, trades, animals, vehicles, boats, entry of goods into the local markets, goods carried on ferries, the maintenance of schools, dispensaries androids. The ADCs can issue licenses and leases for the prospecting and extraction of minerals and are entitled to get a share of royalties accruing to the State from mineral extraction.

The Sixth Schedule further provides that no Act of the State legislature shall apply to any autonomous district unless approved by the Council. The Governor of the states under the Sixth Schedule has the power to decide to either apply or not apply any Act of Parliament or the Legislature in the autonomous area of Assam, Tripura and Mizoram. Along with this provision, except in Assam, in all other Scheduled Area of the Northeast region, the President of India has the right to apply or not apply any Act of Parliament or the Legislature on any matter.

The Councils have judicial powers for trial of offences committed by members of the Scheduled Tribes in their respective areas of jurisdiction. The District and Regional Councils have been conferred powers under the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898 for the trial of certain suits, cases and offences. There is a two-tier system for judicial administration at the district and village levels. The village Council can hear cases wherein both parties belong to Scheduled Tribes while the district courts act as a court of appeal. A District Fund for each Autonomous District and a Regional Fund for each Region has been set up to channelize all the funds designated for these areas.

The Governor has the power to annul or suspend any act or resolution of a District or Regional Council which he finds likely to endanger the safety of India or to be prejudicial to public order. The Governor can suspend the Council and exercise all the powers vested in the Council. However the Governor has to lay such an order before the State legislature as soon as possible and the order shall, unless revoked by the legislature, continue for a period of twelve months from the date on which it was made. The Governor has the power to appoint a Commission at any point of time to examine and report on any matter relating to the administration of the autonomous districts and regions in the State or may appoint a Commission to inquire into and report on the administration of autonomous districts and autonomous regions. Further, the Governor has the power to dissolve a District or a Regional Council with the recommendation of such a Commission.

Statutory Autonomous Councils

There are also Statutory Autonomous Councils in the States of Assam and Manipur. These have been established by Acts passed in State Legislative Assembly. These can be categorised under the following heads:
1. Autonomous District Councils in Assam
2. Hill District Councils in Manipur

1. Statutory Autonomous Councils in Assam

Besides the three (i.e. The North Cachar Hills District, The Karbi Anglong District, The Bodoland Territorial Area District) Councils of the Sixth Schedule, Assam has many Autonomous Councils created by the State Government, some of which are:

a) Rabha Hasong Autonomous Council (RHAC),
b) Lalung (TIWA) Autonomous Council (LAC),
c) Mising Autonomous Council (MAC),
d) Thengal Kachori Hill Autonomous Council, (TKAC)
e) Sonowal Kahari Autonomous Council (SKAC)
f) Deori Autonomous Council (DAC)

The administrative structure of these Councils is patterned on the Autonomous District and Regional Councils created by the Sixth Schedule. This, however, has added significant confusion in the administration. There are three authorities operating in parallel in these areas, namely, the Council, the State departments and the Panchayati Raj. These Councils cover non-contiguous villages. There are many other communities – both tribals and non-tribals – who have been living before some of these tribes came. The creation of autonomous tribe-specific councils will: i) violate Part IX A of the Constitution, ii) not be inclusive as the dominant tribe will control the AC, and other communities will face real or perceived discrimination, and iii) lead to violent inter-ethnic conflicts.

2. Hill District Councils in Manipur
The Autonomous Council of Manipur has been established by the Manipur (Hill Areas) District Council Act, 1971. According to the Act, all the hill areas of Manipur were to be divided into six Autonomous Districts, each with a district Council. These Councils are:
a) Chandel Autonomous District Council,
b) Churachandpur Autonomous District Council,
c) Sadar Hills Autonomous District Council, Kangpokpi
d) Manipur North Autonomous District Council, Senapati
e) Tamenglong Autonomous District Council,
f) Ukhrul Autonomous District Council.

Each district Council has 24 members. Each District Council has an Executive Committee which is constituted by a Chairman, Vice- Chairman and five other members. The Chairman and the Vice-chairman of the District Council is the Exofficio Chairman and Vice-Chairman respectively of the Executive Committee and five other Executive Members shall be nominated by the Chairman from
amongst the Members of the District Council.

These Councils enjoy executive powers under which they are looking after 26 different subjects like construction, repair and maintenance of roads, bridges, channels and buildings; establishment, maintenance and management of schools up to Class VIII; establishment, maintenance and management of dispensaries and Primary Health Sub-Centers, water supply and sanitation schemes; construction, repair and maintenance of embankments, and the supply, storage and control of water for agricultural purposes including irrigation schemes, preservation, reclamation and conservation of soil, animal husbandry and veterinary dispensaries, etc. However, the Manipur District Council Act, 1971 did not confer any legislative powers on the District Council although the Council can recommend legislations on matters concerning Scheduled Tribes such as the appointment or succession of chiefs, inheritance of property, marriage and divorce and social customs. The Manipur District Council Act, 1971, also granted
financial power to these District Councils. Under these provisions, the Council can levy taxes on professions, trades and employment, on animals, vehicles and boats, on the entry of goods into the market for sale and goods carried in ferries, on the maintenance of schools, dispensaries or roads and any other tax falling under list II of the Seventh Schedule of the Constitution which the Manipur legislature may, by law, empower the District Council to levy. However, the Council exercises only nominal judicial power, which lies primarily in the hands of the State Government.

Scheduled Tribe Development Councils
There are also Tribe Development Councils in parts of the Northeast. These are:
a) Barak Valley Hills Tribe Development Council
b) Amri Karbi Development Council
c) Mech Kachari Development Council
d) Sarania Kachari Development Council

Ladakh Autonomous Hill Development Council (Leh and Kargil) Ladakh, a region located in the Northeastern part of the State of Jammu and Kashmir, is a space known more for its magnificent beauty and inhospitable terrain and less for its strong movements for autonomy and self-rule. This longstanding demand was partially fulfilled in 1995 with the passing of the Ladakh Autonomous Hill Development Council Act which allowed for a measure of autonomy within the Indian State with the Darjeeling Gorkhaland Hill Council set up in 1988 as a model. The initial demand of some Ladakhi activists was,
however, for Union Territory (UT) status which was denied – although the call for UT status remains a key electoral issue. The passing of the Act marked the culmination of Ladakhi assertions of autonomy that date back to the 1940s when debates about acceding to the Indian nation-state were rife but these protests escalated in 1989, under the Ladakhi Buddhist Association.

The region of Ladakh is divided into two districts: Leh and Kargil. In the course of Ladakhi protests for autonomy and development, the Indian government granted almost the entire population of Ladakh Scheduled Tribe status in 1989. A total of eight communities were included within the list of Scheduled Tribes. According to the 2001 census, among the two districts of Ladakh, Kargil (88.3 per cent) has the highest proportion of Scheduled Tribes to the total population followed by Leh (82 per cent). The Bot tribe is the largest tribe in the Leh district while the Balti and Purigpa tribes are concentrated in Kargil district. Islam is the predominant religion of the STs (86.3 per cent) in the larger State of Jammu and Kashmir followed by Buddhist (9.3 per cent) and Hindu tribes (4.3 per cent). A majority of the Gujjar, Bakarwal and Brokpa tribes are Muslim while the Bot are primarily Buddhist and the Gaddi mainly followers of the Hindu religion. Within the Ladakh region, the Leh district is largely Buddhist with a substantial Muslim minority and Kargil district is dominated by Shia Muslims with a Buddhist
minority. As part of the 1995 Act, separate Autonomous Councils were to be formed for the districts of Leh and Kargil.

The ‘Reasons for Enactment’ section of the law reads as follows:
“Ladakh region is geographically isolated with a sparse population, a vast area and inhospitable terrain which remains landlocked for nearly six months in a year. Consequently, the people of the area have had a distinct regional identity and special problems distinct from those of the other areas of the State of Jammu and Kashmir. The people of Ladakh have, for a long time, been demanding effective local institutional arrangements which can help to promote and accelerate the pace of development and equitable all-round growth and development having regard to its peculiar geoclimatic and locational conditions, and stimulate fullest participation of the local community in the decision making process. It is felt that decentralisation of power by formation of Hill Councils for the Ladakh Region would give a boost to the developmental activities in Ladakh and meet the aspirations of the people of the said Region. The present measure is enacted to achieve the above object.” (LAHDC Act 1995. Gazette of India, May 9, 1995, p.19)

As a result, powers relating to the planning and implementation of development were transferred from government control at the Central and State level to the local district level Council. Initially, only Leh district opted to form the Council and the Kargil district declined the offer. The first Council for Leh district was sworn in on September 3, 1995. In 2003, Kargil district held elections for appointment to its own Hill Development Council. The Act provides for 30 seats in total for the Council, of which twenty-six seats are filled through elections held on the basis of adult franchise from demarcated constituencies and the remaining four seats are to be filled by persons nominated by the Governor from among the main minority groups (Muslims in the case of Leh) and women. Members of the Council are to meet at least once every year. The Council must elect from among its members a Chief Executive Councillor who chooses four Executive Councillors, and together this group of five constitutes the executive body of the Council. Again, one of the four Councillors must be drawn from among the principal minorities.

The powers and functions of the Council include:

a) Allotment, use and occupation of land vested in the Council (i.e. all
b) ‘wasteland’, excludes land classified as forests)
c) Formulation and review of progress of development programmes for the district
d) Formulation of the budget for the district
e) Formulation of guidelines for implementation of schemes at the grassroots level;
f)Promotion of languages and culture of the area
g) Management of un-demarcated forests and canals or water courses for agriculture;
h) Tourism planning, promotion, and development
i)Vocational training
j) Preservation of the environment and ecology of the area
k) Rights to levy and collect local taxes and fees, including on grazing, business, transport, entertainment, etc. (note, however, that there is no specific mention of tourism, one of the central planks of the economy).
l)Power to hire and fire public servants except for the very highest ranks; all government employees (except in the judiciary and police) are “transferred” to the Council, although the government retains its discretion to recall them.

Clearly, considerable powers have been devolved to the local District Councils which give voice to the peoples’ longstanding aspirations for powers of autonomous decision-making on questions of cultural preservation, environmental protection, and development planning. At the same time, there are several shortcomings in the law itself as well as gaps in its implementation which have resulted in considerable disenchantment with the working of the Councils over the past twenty years. Some of the central drawbacks highlighted are: Even though the Council has the power to draw up budgets and development plans, these still require the approval of the State Government prior to implementation. Further, these plans can only be formulated within the principles of the National and State-level Five Year Plans. Together, these impediments imply that centralized structures continue to prevail as the State and National Governments have the power to reject or amend the Council’s programmes. In the 1997-98 budget, the Leh Council requested the government for 36 crore rupees in its budget but was only given 27 crores initially and later an additional five crore which still did not meet its requirements for the year.

A large part of the funds for the functioning of the Council flow through the State Government which has often delayed the release of funds, thus effectively putting a halt to most of the Council’s activities.

Members of the Council are representatives of various mainstream political parties. Therefore, when members of a particular party form the majority in the Council but are the oppositional party at the level of the State Government, the Council is side-lined and various obstacles to its functioning are created by the State administration and the government in power. Thus, the effectiveness of the Council is shaped by the National and State political interests of the day. The Ladakh region, having a sparse population and only one Lok Sabha seat, is often viewed as marginal within the framework of electoral politics and hence, ignored by successive governments at the State and Centre.

The Leh Council has also borne witness to struggles between the Council members and the administrative structure regarding issues of rank, privileges and powers.

At the local level, much resentment has arisen from the perceived domination of the Council by members of the former nobility, elites working with various nongovernmental organizations, and people from Leh town. The latter has occurred even despite attempts to ensure only locals represent the various constituencies. Some of the decisions implemented by the Leh Council have not resonated with the local people such as making it compulsory for school children to wear the traditional dress or enforce building codes in the area.

It has been argued that the structure of the Council further entrenches communal identities through the creation of separate Councils for the Leh and Kargil districts (on the assumption that territory is equivalent to community), while ignoring the important linkages between communities as well as divisions of gender, class, and so on within communities.

The devolution of power does not, therefore, lead to the empowerment of local communities in any automatic or linear way. The Autonomous Council model in general, does not offer genuine financial autonomy on which political autonomy can be founded. There is a huge discrepancy between the formal rules guaranteeing autonomy and the informal workings of autonomy on the ground. The Councils continue to be heavily dependent on a centralised executive and bureaucratic structure which hamper smooth and independent working of the Councils. Moreover, the powers given to the Councils are limited in several respects such that they are transformed into implementation agencies for development programmes rather than autonomous decision-making bodies. More specifically, the political economy of Ladakh is such that the local people have become heavily dependent on external forces on account of the government policies of encouraging tourism and cash cropping, providing huge agricultural subsidies and rations (Ladakh is also a strategic border area, sharing boundaries with both Pakistan and China).

Further, while territorial autonomy is essential, there are dangers that this model may contribute to discrimination against minority communities through the creation of exclusive spaces for the numerically dominant community within a region. Even within a single community, as can be seen in the Ladakh case, the Councils have been captured by elite groups who have often implemented their own agenda for the region.

Overall Assessment of the Autonomous District Councils under Sixth Schedule

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.

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 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. 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. 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 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 selfgovernance, protective mechanisms, political representation and autonomous decision-making are critical components within the project to improve the socioeconomic status of tribes.

Xaxa Recommendations

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 postindependence 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 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:

1. 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.

✓ 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.

✓ 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). 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:
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 Autonomous Council, wherever established) of the Scheduled Areas on a rotational basis.

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.
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 socioeconomic, educational and health status. 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 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.

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.

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.