Constitution
and Sixth Schedule: Questions and remedies
-Urkhao Gwra Brahma
Britishers are known for
pioneering many thoughts and concepts which have transformed into constitutions
and laws in the world. They are talked
for legacies of governance and administration they have left behind for those
nations, where once they had been ruling. The founding father of the Indian
constitution Dr. B. R. Ambedkar, in the first sitting of the Constituent
Assembly, might have said ‘Good Bye British Rule in India’. But truth is that
Britishers left India in 1947 but left legacy of their structural constitution,
administrative system and mode of democracy also. We may be surprising to know
that just about 75% of the texts of our constitution are derived from the
Government of India Act 1919, 1935 & Cabinet Mission Plan Indian
Independence Act 1947. The Constituent Assembly ventured only to expand those
provisions of British India having considered the Indian historical background,
tradition & custom, social set up, economic condition and geographical
location of the people. It was most difficult area to construct suitable
constitutional provisions for the North Eastern region as because during the
British regime itself most of the areas of the region were brought under the
provisions like Excluded Area, Tribal Area and Scheduled Area administrations.
With a view to keeping those areas in tact in the modern constitution also, the
Sub Committee headed by Gopinath Bordoloi with the members J. J. M. Nicols Roy,
Rup Nath Brahma, A. V. Thakkar, and Mayang Nokcha (he replaced one member Mr.
Aliba Imti) was constituted to assist the Constituent Assembly on 27th
February, 1947. The Sub-Committee submitted its report to Sardar
Ballabhbhai Patel, the chairman of Advisory Committee on Fundamental Rights on
28th July, 1947 recommending Tribal Area Administration in the
region. The Patel committee forwarded to the Chairman Drafting Committee with
some minor amendments. At first, Shri B. N. Rao, the Constitutional Adviser
suggested to put The Tribal Area administration under Eight Schedules. But
later on 13th February, 1948 Dr. Ambedkar while considering the
same, changed that as the Sixth Schedule instead of eight. Thus the Sixth Schedule originated in the
modern constitution of free India.
It sometimes provoke us to think that as to why Britishers conceptualized the category
of same Human Races as backward, tribal,
scheduled group or the advanced or civilized group. Having same blood and
flesh, brain and activities both tribal and non-tribal groups of people represent
the human species living in same civilization. Only differences found are condition of
living, stages of development and timing of exposure to the world. In the
process of changes, education has been instrumental in various ways which could
touch this category of people very lately. The educationally advanced
Britishers might have found these groups of people ever un-contacted, splendidly
isolated from the rest of the civilization and therefore they named them as
backward intending to describe them as uncivilized group of people. But in true
manifestation this approach is the main reason as to why these groups of people
remaining backward because the process of human development could not do
justices to them equally at par with the so called advanced group of people.
Sixth Schedule to the constitution of India is
a sub-constitution within the constitution of India. While framing the same a separate structures
and concept providing distinctive administrative set up, power and functions, certain
democratic discourse also with some self-determining natures were created. This
schedule is offshoot of the process of transformation from one stage to another
stage of development of certain group of people. In the North East region
except present Assam all areas under present Nagaland, Mizoram, Tripura,
Arunachal have been identified as the Tribal Area by the then British India
Government itself. But only the hills districts of Karbi-Anglong and NC Hills
have been identified as Tribal Area in Assam and rest kept as general area. Reason
was clear that the term Tribal was derogatory at that time and not constitutional
cum economic term as today and so, general people wanted to escape from that
kind of identity. Even some prominent members of the Constituent Assembly like
Kuladhar Chaliha from Assam advocated for not making such special provisions
for the tribal and argued that by such isolative provisions these uncivilized
people would never see the light of civilization. This distinction between
tribal and non-tribal in our thinking and lookout has originated caste &
class division in the social and economic lives also. Even till the 21st century also we
have experienced the issue of social stigma on the line of caste, creed and
community. But today the people have started seeing the provisions as the
provisions of economic and political advantages and irony of the fact is that
same group of general people prefer to be inside that family with a motive to
enjoy the special provisions of the constitution. Present Manipur is the only state where
Tribal area administration and Schedule Area Act never applied in the both pre
and post constitution period. Chronological terminology used for such system
was first ‘Backward Tract’ 2nd ‘Non-Regulated System’ 3rd
‘Excluded Area’ 4th ‘Sixth Schedule’ but popular vocabulary used to
identifying that system was Tribal Area Administration. The Government of India
Act 1935 gave up the term ‘Backward Tract’ and replaced by the term ‘Excluded
or Partially Excluded Area’. Though Tribal Area and Sixth Schedule existed, no
any District Councils under that Schedule was ever constituted in Nagaland.
Hence after the state was upgraded to a full-fledged state in 1963 the Sixth
Schedule provision was ceased to be existed there. In Tripura also there was no
Sixth Schedule application in Tribal Areas till it was made applicable through
amendment of the constitution in 1984. On 19th March, 1982 and again
on 11the February, 1983 the Tripura
state Assembly passed a resolution and
placed before the Government of India in that regard. The Indian Parliament
passed that bill through 49th amendment of the constitution and made
applicable of the Sixth Schedule in Tribal Area of Tripura. But the state of
Meghalaya and Mizoram retained the Sixth Schedule applications after both had
been upgraded to full-fledged statehood also as because the provisions were
already in applications. Arunachal Pradesh, which was under NEFA never enjoyed
the application of Sixth Schedule as because the state always remained under
central rule till it was upgraded to full-fledged statehood in 1987. So far the
Bodoland Territorial Areas District is concerned it came up only in 2003
through Constitution (amendment) Act 2003 (Act 44 of 2003) and thus Sixth
Schedule extended its application to plains area of Assam too. Before that
neither the Tribal Area administration nor the Excluded Area provisions were in
application in that area. In 1993 an Autonomous Council under State Act with
the name and style of Bodoland Autonomous Council (BAC) was created and certain
area was demarcated for that. The area demarcation of present BTAD is also
covered that area including some new area and also including reserved forest. But before that also, since 1947 under the X-
Chapter of the Assam Land & Revenue Regulation Act, 1886, a
process of bringing vast areas under the Tribal Belts and Blocks began. Forest
and Reserved Forest areas have been kept to be non-settled area by population
though in some areas substantial populations have been allowed to settle.
Simultaneously some fairly tribal populated areas had also been brought under
Tribal Sub-Plan area for the development purpose. As on today total 19 Tribal
Belts & Blocks have been incorporated to BTAD including a vast area under
Tribal Sub-Plan and reserved and non-reserved forest. A distribution of Tribal
Belts and Blocks and forest area falling within the present BTAD is given here
as follows-
Tribal Belts and Blocks Area:
Undivided Goalpara District : (1) Sidli Tribal
Belts(1948), Area- 4,61,509 Bighas, (2) Bijni Tribal Block (1948) Area-
3,02,545 Bighas, (3) Santal Colony Tribal Block (1977) Area-57,930 Bighas, (4) Dotma Tribal Belt (1983) Area-38,174B, (5) Balaghat Nayekgaon Tribal Block (1984)
Area- 78, 777 B 0K 9L, (6) Ripu Tribal Belt (1984) Area-3, 23, 186B 2K 16L and under present Kokrajhar District (7)
Parbotjhara Tribal Belt (1984) Area- 1,60,643B 2K 5L
Kamrup
Undivided District : (1) Tamulpur Tribal Belt (1949) Area-4,62,637 B, (2) Baska Tribal Belt (1949) Area-3,77,512
B, (3) Chapaguri Tribal Belt (1949) Area
2,64,010 B, (4) Gobardhana Tribal Block
(1949) Area 38, 348 B, (5) Bajegaon
Tribal Block (1949) Area-6,527 B (6) Kharija Bijni Tribal Block (1949) Area –
27, 542 B
Undivided
Darrang District (under present Udalguri district) : (1) Kalaigaon Tribal Belt
(1948) Area-11,16,336B, (2) Tetelibhanguria Tribal Block (1948) Area 10,117
B, (3) Kachapara Tribal Block (1948)
Area- 9,656 B, (4) Tezialpara Tribal Block (1948) Area- 8, 857 B, (5) Bhuyakhat
Tribal Block (1948) Area 9, 299 B (6) Dalgaon Tribal Block (1948) Area- 38, 299
B
Total
Area of Tribal Belt Block within BTAD: 37, 91,904 B 4k 30L.
Total
villages of BTAD: 3079 villages.
Total
villages under Tribal Belt Block falling within BTAD: 2269 villages.
Forest Area:
(1) Kochugaon Division, (2) Haltugaon
Division, (3) Parbatjhara (4) Chirang Division (5) Baksa Division and (6) Dhansiri
Division.
(2) Total Area: 3, 539, 95 Sq. Km
If we add some those Tribal Sub-Plan Area and
Reserved Forest Area to the Tribal Belt and Block area not falling within that,
over 75% area of the BTAD is either tribal dominated or densely populated. So
far the settlement in forest area is concern, tribal have been naturally entitled
by the constitution to live in forest land and non-tribal are also entitled as
the traditional forest dwellers provided if their living is proved to be began since at-least
third generations of their family. When
the BTAD was created the Territorial Rights and historical claim over those
areas was mainly considered as the key basis by the Government of India and
population factor was considered according to that only. In the protected
Tribal Belts and Block areas, by virtue of tradition of the constitutional law,
tribal have the right to control over the areas defined and BTAD is one of such
defined areas where maximum land areas have been identified as the protected
for the tribal. So, the present debate on the question of majority or minority
on the line of tribal and non-tribal has no logic, rather such debate goes
against the spirit of some traditions and practices of the constitution. We
know the fact that, the tribal people are categorized as tribal as because they
are marginalized by the overpowering number of majority population. United
Nation’s principle says that such kind of protected area in the form of
autonomy is to be granted as the constitutional responsibility by each and
every nation to protect and preserve the marginalized group of people from the
engulfment of majority group of people. So the tribal becoming minority in
their own land is not their weakness, rather it is a strength to be under such
special provisions and category. Present debates on the issue of tribal
becoming minority in the tribal autonomy is not the advantage of the majority
but a weakness of them because it exposes their assimilative and expansionists
mindset and total lack of moral responsibility towards marginalized people. The
principle of the constitution provides not only the right and power to rule to
the majority, it also speaks about the moral responsibility to save the
marginalized group of people and keep them in peace. But today this lookout and
approach is disappearing from the mindset of the majority and so is the harmony
between the majority and minority is turning to be bitter. After insertion of the BTAD into Part-1 of
the table appended to paragraph 20 the area has been identified as the Tribal
Area in the constitution and hence territorial claim is to stand for the question
regarding any rights and privileges under the constitution. However, while
framing the BTAD, keeping larger interest of non-tribal people living in BTAD area
into consideration, the expert brought some amendment to some provisions of the
Sixth Schedule and made some restrictive provisions non-applicable of there.
Mainly three such amendments ceased application of some provisions of the Sixth
Schedule in BTAD and these are No-1: Special Provision of Administration of
Justice in Autonomous Districts under para-4, No-2 : District Council’s power
to control the Money Lending and trading by non-tribal after para 10 (4) under
para 10 has been inserted, No-3 :
Governor’s power to exclude areas from Autonomous District in forming
constituency in such district after Para
17 of the Sixth Schedule has been amended.
In the process of framing Tribal
Area administration under present Sixth Schedule administration, the Indian
Statutory Commission popularly known as Simon Commission first suggested
centralized rule over those areas. No provincial rule should be prevailed upon
the administration of those areas as because it is the Centre not the State,
which has to bear complete expenditures of running such areas. Even in the
debate of Constituent Assembly a member from Bihar Shri Brajeswar Prasad put
forwarded a view that no provincial Government or Governor should have any role
in administration of such scheduled areas. Only the President of India should directly
handle the area as because at that time Assam was bordering to more than one
foreign country which was serious from the national security point of view.
Further Shri Prasad observed critically that in Assam relevantly there were
conflicts between Ahom- Assamese, Bengalis-Muslims-Mongoloid races at that time.
Political stability in the region was big questions at that time therefore the
area was suggested to be ruled by the President of India. But ultimately
Governor was made principal power centre in administration of Sixth Schedule
area and the state Government had been made key power runner in the same. Any
Act passed by the District Council under Seventh Schedule List II, has to
obtain assent of the Governor and Governor takes opinion of the state
Government in such cases. Even in the nomination of Members in the Council it
is the Council of Ministers of the state, which actually prepares the things
unofficially and then Governor notify formally. Any Act relating to the Seventh
Schedule List – I is kept reserved for President’s assent and in such case
Governor forwards to the President of India for necessary approval. When the
matter is cleared by the President of India in consultation with the Union
Government’s concerned Ministries, the Governor brings necessary notifications.
In the case of bills relating to the List-III under Seventh Schedule same exercise
is done by the Governor as it is in the List-I and List-II. Compositely complex
system has caused sluggishness in entire mechanism and as a result several
bills passed by District Councils permanent pending with Governor, waiting for necessary
passage to be act. Karbi-Anglong-NC
Hills have examples of a good numbers of bills passed by their respective
District Councils are being kept pending for decades by the Governor for
necessary assent. Recently within the 10 years of existence BTAD has also
passed about 27 bills cum Acts and some Regulatory Acts. None of those has yet
been accorded assent by the Governor till date, which has emboldened more the
questions over the credibility and workability of such Councils. Hurdles are identified
that some Bills or Acts are subject to clearance from the Centre and the State
but some regulatory acts are purely under the discretion of the Governor. Some
provisions clearly ensures that if any Bill or Act is passed by the District Councils and sent for necessary assent, the Governor can assent as
practiced in the Parliament and Assembly without any delay. The protracted
provision of the Sixth Schedule speaks many things about the rights and
privileges but tricky mechanism or system enabled the supremacy of the State
Government to control and give direction to same. The basic essence of the
Autonomy itself is never experienced fully by the tribal people through such
Autonomy as because we have actually the quasi Autonomy not the real. We have
no instances of successful autonomy but we have the history of all Autonomous Areas
of being upgraded to a full-fledged state under the constitution. Most of the
North eastern states have been upgraded either from the stage of Sixth Schedule
or from the Article 244(A) of the constitutions. Legislative, Financial and Administrative
powers have never been transferred fully to any of the Autonomous districts or
Territorial Area districts. The power of controlling their own territory with
minimum law and order authority is not provided, resource mobilization,
employment generation and revenue earnings are always state subjects. Financial
power in budgetary system, allocations by national Planning Commissions and controlling
of funds including utilizations are also not fully handed over. On the other hand
the short comings in the system are lack of effective mechanism to ensure
accountability between the Councils and the Governments. The rampant corruption
and total irregularities in financial managements always creates financial
anarchism amongst the public and that creates resentment and dissatisfaction
also. Having viewed the present unstable situation in the tribal areas of North
Eastern reason, the Government of India need to revisit the provision of Sixth
Schedule of the constitution for the tribal people and give full effort to
provide full-fledged Autonomy, where the concepts of more Central Ruled
territory or Smaller States have become more necessary in the nation. After 67
years of nation’s independence if many things have been changed in the
constitution then total constitutional structure and its responsibility with
regard to tribal of North Eastern region and the tribal of Assam in particular,
also should be changed without any prejudice. Tribal movement for more Autonomy
or Statehood should not be treated as the immature movement out of
sub-nationalism aspiration, rather it should be considered as the move for
greater nation building where stability, harmony and prosperity can be found.
