By A Romen Kumar Singh
“You can not teach democracy to the tribal people; you have to learn democratic ways from them. They are the most democratic people on earth. What my people require is not adequate safeguards. They require protection. We do not ask for any special protection. We want to be treated like every Indian….”
Jaipal Singh representing the tribe said while debating on the preamble to the constitution before the Constitution Assembly.
This might have set the tune for the framers of the Indian Constitution towards the tribal’s mite in the Constitutional Scheme, but definitely the tribal constitution, i.e. the Sixth Schedule which is described by Justice M.Hidayatullah as a “mini-constitution”.
Status of tribals as first settlers in the country
A Bench of Three Judges of the Supreme Court as reported in SAMATHA V. State of Andhra Pradesh, (1997)8 SCC 191 at page 277 – Para 136 held that tribals are stated to be the first settlers in the country but were gradually pushed back into the forests and hills by subsequent settlers who later came to be known as the plainsmen or people of or from the plains. The forests and hills provided a natural barrier and isolated the tribals from the people living in the plains. On account of their isolation, they remained illiterate, uneducated, unsophisticated, poor and destitute, and developed their own society where they allowed themselves to be governed by their own primitive and customary laws and rituals.
Brief historical background
By a notification under Section 52A(2) of the Government of India Act, 1915-19, the Governor-General in Council declared the following territories in the then province of Assam as backward tracts: (1) The Garo Hills District; (2) The British portions of Khasi & Jaintia Hills District other than the Shillong. Municipality and cantonment; (3) The Mikir Hills; (4) The North Cachar Hills District; (5) The Naga Hills District; (6) The Lushai Hills District; (7) The Sadiya Frontier Tract; (8) The Balipara Frontier Tract; (9) The Lakhimpur Frontier Tract.
However, the British Government desired to limit the exclusion of these areas as much as possible and ultimately referred the matter for further examination by the Indian Statutory Commission, 1930, popularly known as Simon Commission. The Simon Commission in its report mentioned that during the 1930’s these backward tribal areas extended up to almost 1,20,000 sq. miles with a populace of about 11 million, and were stretched mainly in Bihar, Orissa, Punjab, Burma, Bengal and Assam.
The object of government policy (Primitive or indigenous)
The object of Government policy in relation to these areas inhabited by backward, tribal and aboriginal people was visualised by the Simon Commission. Until then the object had been primarily to give these primitive. Inhabitants’ Security of land tenure, freedom of pursuit of their traditional means of livelihood, and a reasonable exercise of their ancestral customs have been the primordial necessity of the object. No self-determination or rapid political advancement was considered necessary but an experienced and sympathetic handling and protection from economic subjugation by their neighbours was felt more important for these people.
Perpetual isolation from mainstream progress and development would not be a long-term measure.
This Commission also realised that the perpetual isolation from the mainstream of progress and development would not be a long-term beneficial measure and that it would be ultimately necessary to make these people educated and self-reliant and drawn to the mainstream of development through gradual assimilation with the menfolk. The Commission, on one hand, considered it too huge a task to be left to the Missionaries and individuals, since for a long-term policy of uninterrupted pursuance, and coordination of activities an adequate fund would be required, while on the other hand, a typically backward area was considered to be non-productive or non-revenue-earning and deficit area for which no provincial legislature was likely to possess either the will or the means to develop the area without any return. At the same time, it was felt by the commission that it would not be a realistic arrangement if these areas were placed under such a centralised administration that there would be a risk of its separation from the provinces of which the areas were an integral part.
Recommendation of Commission
In this backdrop, the commission ultimately recommended that the responsibility of administration of the backward tracts or areas should be entrusted to the Central Government but the Central Government should use the non-political officers of the Governors as agents for the administration of these areas and depending on the degree of backwardness, it could be prescribed under the appropriate rules how far Governor would act in consultation with his Ministers in charge of his duties as an agent of the Central Government.
Recommendation of the Commission not adopted
However, the Simon Commission’s recommendation for centralised administration for all the backward areas was not adopted in the Constitutional reforms of 1935. On the other hand, the Government of India Act, of 1935 created three types of special areas. Under the Act, of 1935, these backward areas were classified as excluded areas and partially excluded areas.
The newly created excluded areas, to the extent of about 18,000 square miles in Assam and 10,000 square miles in the provinces of Madras, Bengal, North-West Frontier, Punjab and Assam were placed under the personal rule of the Governors in their discretion. The needy created partially excluded areas were placed under the responsibility of a Minister specifically in charge of such areas while the Governor was assigned with certain special responsibility in the administration of these areas only in certain matters in respect of which he had the power to act in his individual judgement and to overrule the Minister’s advice.
No act of the federal or provincial legislature would apply
The Government of India Act, of 1935 further provided that no Act of the Federal or Provincial Legislature would apply to any of these areas, but the Governors had the authority to apply any such Act with or without modification as they would consider necessary. In addition to these excluded and partially excluded areas, there were certain “tribal areas” which were defined in Section 311(1) of the Government of India Act, 1935, as “areas along the frontiers of India or in Balochistan, which are not part of British India or Burma or of any Indian State or of any foreign State”.
The status of these areas was very peculiar, as in terms of the definition they did not form part of British India; nor the British Parliament or the Legislatures in British India had any direct legislative powers in respect of these areas. Whatever powers were exercisable in respect of these areas, the same in fact originated from some, “treaty, grant, usage, sufferance or otherwise”, and to validate the effect of such treaty etc. the Government of India Act, 1935 contained a specific provision, enabling the Governor-General to act in his discretion in respect of administration of these areas and keeping the same outside the Ministerial responsibilities.
Need for the attention of the constituent assembly to these areas. In a statement on 16.5.1946 the Cabinet Mission reiterated the need for special attention of the Constituent Assembly to these excluded and partially excluded areas and tribal areas while drafting the new constitution of India.
An Advisory Committee was planned on Fundamental Rights and Minorities in such a manner that it should contain a due representation of all the interests likely to be affected and should advise the Constituent Assembly on framing an appropriate scheme for the administration of tribal and excluded areas.
The Advisory Committee in its meeting on 27.2.1947 set up three sub-committees – one to consider the tribal areas and excluded and partially excluded areas in Assam, another to consider the tribal areas in the North-West Frontier Province and Baluchistan, and a third Sub-Committee to consider the position of excluded and partially excluded areas in the Provinces other than Assam. The Sub-Committee on tribal and excluded and partially excluded areas submitted its report on 28.7.1947, while the other Sub-Committee on the excluded and partially excluded areas in the provinces other than Assam submitted its interim report on 18.8.1947 and final report in September 1947.
Observation of sub-committees is the preservation of social customs from erosion and safeguarding traditional vocations.
The joint meeting of the two sub-committees held in August 1947 observed, inter alia, that primarily the government policies relating to the tribes and tribal areas had been the preservation of their social customs from sudden erosion, and the safeguarding their traditional vocations without the danger of their absolute exploitation by the more sophisticated elements of the population.
At the same time the sub-committees recognised the fact that the keeping the tribals in isolation should not continue for an indefinitely long period, and, therefore, the alternative government policy should be to raise their educational level and standard of living to such extent that they might in course of time be assimilated with the rest of the population: the sub-committee did not find it advisable to remove the administrative distinction between the backward areas and the rest of the country and thus recommended that while certain areas like Sambalpur in Bihar and Angul in Orissa need not further be treated differently from the regularly administered areas, other tribal, excluded and partially excluded areas need a simplified type of administration to protect the tribals from exposure to the complicated system of the ordinary law courts and from the exploitation of the traders and money lenders who used to take advantage of their simplicity and illiteracy, and deprive them from their land and right of survival.
The sub-committee recommended that the areas predominantly inhabited by aboriginals in the provinces other than Assam should be known as “Scheduled Areas”; whereas the area predominantly inhabited by aboriginals in the state of Assam and mostly being frontier or border areas should be known as ‘Tribal Areas”. The recommendations of the two Sub-Committee should not be considered by the Constituent Assembly in its session in July 1947, when the Broad principles of the Constitution were settled, since, as stated by Dr, Ambedkar, the same were received too late.
However, the Drafting Committee considered the recommendations and the draft prepared by the Sub-Committees, at the stage of drafting and suitable provisions including Schedules V and VI were included in the draft constitution of February 1948, and thus, provisions of VI Schedule germinated in the Constitution of India.
The provisions of the Sixth Schedule to the Constitution have evolved a separate scheme for the administration of the tribal areas in Assam, Meghalaya, Tripura and Mizoram through the institution of District Councils or Regional Councils. These councils are vested with legislative power on specified subjects, allotted sources of taxation and given powers to set up and administer their system of justice and maintain administrative and welfare services in respect of land, revenue, forests, education, public health etc.2.
Provisions of sixth schedule
The various provisions of Sixth Schedule can be briefly summarised as below
1. Para 1 of the Sixth Schedule deals with tribal areas in each item of the table appended to paragraph 20 of this schedule as autonomous districts.
2. Para 2 of the Schedule deals with the Constitution of District Councils and Regional Councils.
3. Para 3 of the Sixth Schedule deals with the powers of the District Councils and Regional Councils to make laws.
4. Para 4 of the Sixth Schedule deals with the administration of justice in autonomous districts and autonomous regions.
5. Under Para 5 of the Sixth Schedule, powers under the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898 are conferred on the Regional and District Councils and on certain courts and officers for the trial of certain suits, cases and offences.
6. Para 6 of the Schedule deals with the powers of the District Council to establish primary schools etc.
7. Under Para 7 of the Schedule, District and Regional Funds shall be constituted for each autonomous district council and for each autonomous region. All monies received shall be credited to the District and Regional Funds in the course of the administration of such district or region as the case may be in accordance with the provisions of the constitution.
8. Para 8 of the Schedule deals with the powers to assess and collect land revenue and to impose takes.
9. Para 9 of the schedule deals with Licences or leases for the purpose of prospecting for or extracting minerals.
10. Under Para 10 of the Schedule, the District Council has the power to make regulations for the control of money lending and trading by non-tribals.
11. Under Para 11, all laws, rules and regulations made under this schedule by a District Council or a Regional Council shall be published forth within the official Gazette of the State and shall on such publications have the force of law.
12. Para 12 of the Schedule deals with the application of Acts of Parliament and of the Legislature of the State of Assam to autonomous districts and autonomous regions in the State of Assam.
12A: Para 12A deals with the application of Acts of Parliament and of the Legislature of the State of Meghalaya to autonomous districts and autonomous regions in the State of Meghalaya.
12AA: Para 12AA of the Schedule deals with the application of Acts of Parliament and of the Legislature of the State of Tripura to the autonomous district and autonomous regions in the State of Tripura.
12B: Para 12B of the Schedule deals with the application of Acts of Parliament and of the Legislature of the State of Mizoram to autonomous districts and autonomous regions in the state of Mizoram.
20: Para 20 of the Schedule deals with the provision that areas specified in Paras I, II, IIA and III of the table below shall respectively be the tribal areas within the State of Assam, the State of Meghalaya, the State of Tripura and the State of Mizoram.
20A: Para 20A deals with the Dissolution of the Mizo District Council
20B: Para 20B of the Schedule says that Autonomous Regions on the Union Territory of Mizoram to be autonomous Districts and transitory provisions consequent thereto.
20C: Para 20C of the Schedule deals with the interpretation of this Schedule.
21: Para 21 of the Schedule deals with the amendment of the Schedule.
13. Under Para 13 of the Schedule, the estimated receipts and expenditures pertaining to an autonomous district which are to be credited to, or is to be made from, the Consolidated Fund of the State shall be first placed before the District Council for discussion and then after such discussion be shown separately in the annual financial statement of the state to be laid before the Legislature of the state under Article 202.
14. Under Para 14 of the Schedule the Governor may at any time appoint a Commission to inquire into and report on the administration of autonomous districts and autonomous regions.
15. Under Para 15 of the Schedule, if at any time the Governor is satisfied that an act or resolution of a District or Regional Council is likely to endanger the safety of India or is likely to be prejudicial to public order, he may annul or suspend such act or resolution and take such steps as he may consider necessary (including the suspension of the council and the assumption to himself of all or any of the powers vested in or exercisable by the council) to prevent the commission or continuation of such act or the giving effect to such resolution.
16. Under Para 16 of the Schedule the Governor may on the recommendation of a commission appointed under Paragraph 14 of this Schedule by public notification order the dissolution of a District or Regional Council.
17. Para 17 of the Schedule deals with the exclusion of areas from autonomous districts in forming constituencies in such districts.
18. Para 18 of the Sixth Schedule is omitted by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971)
19. Provision of Para 19 of the Schedule relates to transitional provisions to enable the Governor to take steps for the constitution of a District Council for each autonomous district in the State.
The basis for granting the status of sixth schedule:
The Supreme Court in the case as reported in (1997)8 SCC 191 (Supra) has emphatically mentioned that tribals, on account of their isolation, remained illiterate, uneducated, unsophisticated, poor and destitute. At the same time, the recommendations of the Sub-committees (Supra) mainly focussed that the Government policies should be for the preservation of the tribal’s social customs from sudden erosion, and the safeguarding their traditional vocations without the danger of their absolute exploitation by the more sophisticated elements of the population. Illiteracy and exploitation of tribals by elements of the population form the basic foundation of applying the provisions of the Sixth Schedule.
Sixth Schedule in Manipur:
The State of Manipur is the only state of the seven sister states of the North Eastern Region to which the provisions of the Sixth Schedule have never been applied. Manipur was initially a Union Territory, being a Part C State in the First Schedule to the Constitution, having been placed as item No.9. According to Part VIII of the Constitution (Article 239), Part C States was administered by the President through Chief Commissioner or Lieutenant Governor.
The states in the North Eastern Region were reorganised by the North Eastern Areas (Reorganisation) Act, 1971 and by section 3 thereof, the state of Manipur was formed comprising the territories which immediately before that day were in the Union Territory of Manipur.
Separate provisions for the constitution of district councils for hill areas of Manipur.
Close on the hills of the formation of the state of Manipur by the aforesaid Act, the Manipur (Hill Areas) District Council Act, 1971 (Act 76 of 1971) was passed by the Parliament for the constitution of District Councils for the Hill Areas of the state of Manipur. The aforesaid Act has been replaced by the state enactment namely, the Manipur Hill Areas Autonomous District Council Act, 2000 (Manipur Act 11 of 2000) wherein detailed provisions are made for the functioning of the District Council constituted in the Hill Areas of the State. District Councils have been constituted in all the five Hill Districts of Manipur.
1. Ukhrul Autonomous District Council, Ukhrul
2. Tamenglong Autonomous District Council, Tamenglong
3. Churachandpur Autonomous District Council, Churachandpur
4. Chandel Autonomous District Council, Chandel
5. Senapati Autonomous District Council, Senapati
6. Sadar Hills Autonomous District Council, Kangpokpi
Insertion of Article 371 C
By the Constitution (27th Amendment) Act, 1971, Article 371 C has been inserted whereby the Parliament has been empowered to constitute a Committee of Legislative Assembly for the Hill Areas of the State. Further, the Governor is required to make an annual report to the President regarding the administration of the Hill areas of the State. It further provides that the executive power of the Union extends to giving direction to the State in the administration of said areas.
The power of the governor under the Sixth Schedule is to be exercised on the aid and advice of the council of ministers.
Power under Sixth Schedule: Pu Myllai Hlychho Vs State of Mizoram (2005) 2 SCC 92
Constitution bench of the Supreme Court held as below:
Page 94 – Para 1: (i) The provisions of the Sixth Schedule to the Constitution have evolved a separate scheme for the administration of the tribal areas in Assam, Meghalaya, Mizoram and Tripura through the institution of District Councils or Regional Councils. These Councils are vested with legislative power on specified subjects, allotted sources of taxation and given powers to set up and administer their system of justice and maintain administrative and welfare services in respect of land, revenue, forests, education, public health etc.
(ii) Satisfaction of governor required by the constitution is not personal satisfaction.
Page 98 – Para 15: The executive power also partakes in legislative or certain judicial action. Wherever the Constitution requires the satisfaction of the Governor for the exercise of power or function, the satisfaction required by the Constitution is not the personal satisfaction of the Governor but the satisfaction in the Constitutional sense under the cabinet system of government.
The Governor exercises functions conferred on him by or under the Constitution with the aid and advice of the Council of Ministers and he is competent to make rules for the convenient transaction of the business of the Government of the State, by the allocation of business among the Ministers under Article 166(3) of the Constitution.
It is the fundamental principle of English Constitutional Law that the Ministers must accept responsibility for every executive act. It may also be noticed that in regard to the executive action taken in the name of the Governor, he can not be sued for any executive action of the State and Article 300 specifically states that the Government of the state may sue or may be sued in the name of the state subject to the restriction placed therein.
Powers of the president and governor are similar to the crown under the parliamentary system.
This Court has consistently taken the view that the powers of the President and the Governor are similar to the powers of the CROWN under the British Parliamentary System. We followed the principle in (1) Rai Sahib Ramjawaya Kapur Vs. State of Punjab, AIR 1955 S.C. 549, A. Sanjeevi Naidu V. State of Madras, (1970)1 SCC 443 and U.N.R Rao V. Indira Gandhi, (1971) 2 SCC 63.
(iii) Termination of four members from Mara autonomous district council by the governor of Mizoram on the advice of the council of ministers is perfectly in accordance with Sixth Schedule.
Page 103 – Para 32: In the result, we hold that the Governor was bound by the aid and advice of the Council of Ministers and the termination of the four members from MADC by order of the Governor on 5.12.2001 was perfectly in accordance with the constitutional provisions and the Sixth Schedule to the Constitution.
For the nomination of members governor was justified in making consultation with the council of ministers
The nomination of the four members to the council by orders dated 6.12.2001 was legal and the Governor acted by virtue of the discretionary power vested in him. The Governor was justified in making consultation with the Council of Ministers and the Governor making such incidental consultation with the Council of Ministers did not in any way affect the discretionary power.
No other authority interfered with the independent exercise of the Governor’s discretion in nominating the four members of MADC and the notification issued by the Governor on 6.12.2001 was validly made and the decision of the Division Bench of the Gauhati High Court does not call for any interference.
The writer is a retired Indian Police Service (IPS) officer and is currently working as a senior advocate at the High Court of Manipur
The opinion, facts and interpretations published are that of the author.