Context: Arunachal political groups are calling for bringing the entire Arunachal Pradesh under the ambit of the Sixth Schedule or Article 371 (A) of the Constitution
Article 371(A) states that no act of Parliament shall apply to the State of Nagaland in respect of the religious or social practices of the Nagas, its customary law and procedure, administration of civil and criminal justice involving decisions according to Naga customary law and ownership and transfer of land and its resources.
Reasons for demand for inclusion in 6th schedule: Arunachal Pradesh which borders Bhutan, China and Myanmar is under the Fifth Schedule.
- Problems in current provisions:
- Arunachal Pradesh is placed under Article 371H which other than giving overriding powers to the governor of the state is silent on various issues like the rights of the indigenous people over their land, water and forest.
- No special rights for the indigenous communities unlike the Sixth Schedule:
- The Sixth Schedule has certain features like concepts of constitutional and legislative subjects that are exclusive to local governments.
- An autonomous district council under 6th schedule will give a greater role in directing administrative requirements without depending on the Central State structure.
About scheduled areas: In Article 244(1) of the Constitution, expression Scheduled Areas means such areas as the President may by order declare to be Scheduled Areas.
- Criteria for Declaring Schedule Areas: Part 10 of the Indian Constitution entails the provisions related to Scheduled and Tribal Areas with Articles 244 – 244 A. The criteria followed for declaring an area as Scheduled Area are:
- High numbers of tribal population;
- Compactness and reasonable size of the area;
- Under-developed nature of the area; and
- Marked disparity in the economic standard of the people.
These criteria are not spelt out in the Constitution of India but have become well established.
5th schedule and 6th schedule- a comparison
At present, 10 States namely Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana have Fifth Schedule Areas.
The Sixth Schedule consists of provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram, according to Article 244 of the Indian Constitution.
Article 244A was added to the constitution through the 22nd Constitutional Amendment Act, 1969.
The Union Government has executive powers to give directions to the States for the administration of the 5th Scheduled Areas.
The 6th schedule areas remain within executive authority of the state.
Tribes Advisory Council (TAC): To take care of the welfare of the scheduled tribes, a Tribal Advisory Council is constituted in each state with a scheduled area.
- It consists of not more than twenty members of whom, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State.
- It advises the Governor on matters pertaining to the welfare and advancement of the Scheduled Tribes in the State.
Autonomous districts and regional councils
Article 244 and 275 make provision for creation of the District Councils and regional councils.
ADCs are bodies representing a district to which the Constitution has given varying degrees of autonomy within the state legislature.
The Governor may make rules prescribing or regulating
- The number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof,
- The conduct of its meetings and its procedure in general
The governors of these states are empowered to reorganise boundaries of the tribal areas.
- In simpler terms, she or he can choose to include or exclude any area, increase or decrease the boundaries and unite two or more autonomous districts into one.
- They can also alter or change the names of autonomous regions without a separate legislation.
The Governor may direct that any particular Act of Parliament or of the Legislature of the State shall or shall not apply to a SA or any part thereof in the State.
The 1996 PESA or Panchayats (Extension to the Scheduled Areas) mandates the state to devolve certain political, administrative and fiscal powers to local governments elected by the communities.
Supreme Court decisions
In its 1997 Samatha decision, the Supreme Court ruled that the Fifth Schedule enjoined Governors to bar purchase of tribal land for mining activity by any entity that was not state-owned.
Shortcomings of 5th and 6th schedule
The Scheduled Tribes and Other Traditional Forest Rights Act of December 2006, which recognises the right of communities to protect and manage their forests (as does PESA), but only if the state decides whether a certain region is denoted as Village Forest or Reserved Forest. In this process, many communities are evicted without a proper channel of rehabilitation.
The Sixth Schedule has shortcomings like breakdown of laws, elections not being contested, rather than empowerment there is exclusion of tribes in the absence of political will, and, live by the mercy of government funds.
Autonomous districts councils:
The elected members of the District Council shall hold office for a term of five years from the date appointed for the first meeting of the Council after the general elections to the Council.
Each autonomous district and regional council consists of not more than 30 members, of
Which four are nominated by the governor and
The rest via elections.
The Bodoland Territorial Council, however, is an exception as it can constitute up to 46 members out of which 40 are elected.
Currently, there are ten Autonomous districts councils in the region as listed below:
North Cachar Hills District
The Karbi Anglong District
The Bodoland Territorial Areas District
Khasi Hills District
Jaintia Hills District
The Garo Hills District
Tripura Tribal Areas District
The Chakma District
The Mara District
The Lai District
ADCs empowered with civil and judicial powers
- The ADCs are empowered with civil and judicial powers, and can constitute village courts within their jurisdiction to hear trials of cases involving the tribes.
- Governors of states that fall under the Sixth Schedule specifies the jurisdiction of high courts for each of these cases.
- The councils are also empowered to make legislative laws on matters like land, forests, fisheries, social security, entertainment, public health, etc. with due approval from the governor.
- The roles of the central and state governments are restricted from the territorial jurisdiction of these autonomous regions.
- Also, Acts passed by Parliament and state legislatures may or may not be levied in these regions unless the President and the governor gives her or his approval, with or without modifications in the laws for the autonomous regions.
- CAA exemption: the Citizenship Amendment Act, 2019 states that areas under the Sixth Schedule are exempted from its purview, which means non-Muslim refugees from the three countries who are granted Indian citizenship will not have any land or trading rights in the autonomous regions.