Constitution (125th Amendment) Bill could bridge gap between mainland and North East, but problematic provisions must be reappraised

The Government of India is in the process of deliberating and readying the Constitution (125th Amendment) Bill to place it on the parliamentary altar to try and change the destiny of our citizens.

Pratik Patnaik April 16, 2020 14:47:20 IST
Constitution (125th Amendment) Bill could bridge gap between mainland and North East, but problematic provisions must be reappraised

The book ‘The Tyranny of Distance’ published in 1966 talks about how Australia's geographic aloofness, especially from its colonial master Great Britain has been critical in its history and in shaping its identity. The book explains how this great geographical divide made Australians unsure of their future economic prosperity which pushed them towards self-reliance in order to ‘tame’ the tyranny and to actually turn it into an advantage. Though the context is non-colonial, can the same be said for the northeastern states in India?

Constitution 125th Amendment Bill could bridge gap between mainland and North East but problematic provisions must be reappraised

File image of Parliament. PTI

Until recently, anything which lay beyond the famed ‘Chicken’s Neck’ (the corridor near Siliguri which joins the northeastern states with mainland India) was shunned out of our collective consciousness. The elusive ‘newsworthiness’ begins to lose its breath by the time it reaches the outer limits of the National Capital Region, begins panting in Bihar and gets knocked out before it sets foot in Bengal.

The Seven Sisters barely stand a chance. This has made the information coming to us from the northeastern states anecdotal, steeped in prejudice and quite inadequate. The Government of India is in the process of deliberating and readying the Constitution (125th Amendment) Bill to place it on the parliamentary altar to try and change the destiny of our citizens.

This time, it majorly concerns the tribal population and areas of four North East states — Assam, Meghalaya, Tripura and Mizoram — and is set to usher in integral changes to the politics and life of the region.  In the spirit of taking active interest in the lives and in the geo-politics of the region so that we can, for once, awaken from our collective slumber with respect to the region, it is incumbent to analyse the major changes in the proposed amendment.

The Constitution provides for “autonomous districts” in the these states encompassing regions where indigenous tribes reside within such states. The governance and the administration of these autonomous districts are carried out by distinct entities created under the sixth Schedule of our Constitution, called “District Councils” or “Regional Councils” (in case one District Council area has more than one kind of tribe a Regional Council is created).

The “District/Regional Councils” are somewhat like ‘states within a state’ with starkly independent governance. The autonomous “District/Regional Councils” comprise of elected and nominated members and these councils exercise legislative, executive as well as judicial powers. For example, the laws of inheritance, marriage, contracts are governed by separate laws which stem from local tribal customs and which are made by the “District/Regional Councils” and not by the state legislature. Even the Indian Penal Code, 1860, is not applicable to the tribes living in the “District/Regional Councils” and even the power to impose tax are devolved to such councils with minimal state interference.

These autonomous “District/Regional Councils” find their origin in the British Raj’s policy of non-intervention in matters of faith and custom of conquered territories especially that of a hostile territory so that the cost of fending off threats does not outweigh the revenues from taxes collected. A policy which they probably borrowed from the mighty Romans who followed the same pattern in their gigantic kingdom.

The framers of our Constitution accepted the policy of non-interference and internal self-determination in the region in order to protect the distinctiveness of the tribes and to preserve their cultural rights. For most of part of 70 years since the inauguration of the Constitution, the tribes and the “District/Regional Councils” have remained largely independent, steeped in self-governance.

There are 10 (ten) autonomous District/Regional Councils in these states: North Cachar Hills District Council, the Karbi and Anglong District Council and the Bodoland territorial Area District Council in Assam, Khasi Hills District, Jaintia Hills District and Garo Hills District in Meghalaya, Tripura Tribal Areas District in Tripura and The Chakma District, The Mara District and The Lai District in Mizoram.

First major amendment proposed is to Article 280 of the Constitution which deals with the Finance Commission of India. By way of the proposed amendment the Finance Commission is enabled to make recommendations on measures to augment the consolidated fund of a state to provide resources to District Councils, Village Councils, and Municipal Councils (the village and municipal councils are also new bodies also brought in by the Proposed Amendment discussed later) in tribal areas in these states.

The objective of this particular amendment is to strengthen the District Councils and enhance its resources, including their better finances through the Finance Commission, so as to bring the District Councils at par with the Panchayati Raj Institutions which were created by way of the 73rd and 74th amendments to the Constitution which were not made applicable to the autonomous regions then. The proposed amendment also provides for the constitution of State Finance Commissions in these states.

While, this is a stride in a positive direction, a couple of questions lurk. Firstly, it was suggested by some of these states that tribes be provided representation in the Finance Commission so that the grassroot-level issues can be better appreciated while the Finance Commission is deliberating on their fate.

Secondly, some of these states also suggested ‘direct funding’ of District Councils so that their autonomy remain intact and the funds would not have to be routed through the state governments. Both these suggestions have been shot down by the Ministry of Home Affairs as per the Standing Committee report on the proposed amendment headed by Anand Sharma.

The second noteworthy change in the structure of self-governance of the region is the constitution of village and municipal councils as sub-bodies under the District Councils to further the devolution of power. One eyesore is the exception afforded to Meghalaya from this provision for no particular rhyme or reason.

The Standing Committee has observed that this exception goes against the spirit of democracy and that the government should reconsider its decision. Similarly, under the proposed amendment, the state Election Commission is now empowered to conduct the polls in the region. However, again, with the unfortunate exclusion of Meghalaya. This may lead to disarray in terms of the rights and duties within the pool of the autonomous District Councils which is avoidable.

The third important amendment concerns the increase in number of seats in few of the District Councils in some of these states. The spike in strength of seats vary from 10  seats to 20 seats in of the District Councils. While increase in representation is definitely a step in the right direction, however, some of these states, including the BJP-ruled Assam, have argued that the increased number of seats be tied to the population (similar to the determination of seats in Lok Sabha/Assembly constituencies).

While the Ministry of Home Affairs argues that the raise in the seats based on the Memorandum of Settlement signed with various tribal constituents, even the Standing Committee report on the proposed amendment has expressed concerns regarding the same.

The fourth significant amendment is with respect to the reservation of women in the District Councils. The good news is that reservation has been provided for in the newly constituted village and municipal councils under the District Councils for women to the extent of one-third members, the bad news is that the reservation in the District Council is only limited to 2  members that too in the nominated members’ category who are nominated by the governor.

What has to be borne in mind is that many of these tribes are matrilineal societies and the political participation of women becomes all the more incumbent for that reason. The District Councils are the real power centres who will be supervising the village and municipal councils and the lack of reservations therein may defeat the purpose entirely.

Further, Meghalaya has been given an exception with respect to reservation of seats of women. This step, with no seemingly evident reason, has been commented upon strongly by the Standing Committee as well. It remains to be seen if the government will reconsider its decision.

Lastly, one of the meatiest portions of the proposed amendment concerns Assam. The amendment transfers an additional 30 subjects from state government to the autonomous District Councils inter alia important subjects such as land, public works, food and civil supplies and tourism, devolving legislative and executive powers for such subjects.

There are two issues with this: firstly it is a missed opportunity for the government to replicate similar devolution of powers with respect to other such states, especially in the light of multiple demands for the same by other states as noted by the Standing Committee. Secondly, there seems to be a disagreement with respect to the transfer ‘land’ to the autonomous District Councils in Assam.

The government of Assam has requested an exception in the proposed amendment to clarify that the state government will have the power to take over land for government projects. The Standing Committee has recommended that the ministry build consensus on the provision with the state government, the District Councils, and other elected representatives. It further recommended that the government should consider devolution of powers to make laws on these subjects to the autonomous District Councils in Mizoram and Tripura as well.

Reverend JJM Nichols Ro, a member of the Constituent Assembly, while debating the provision during the drafting process made a significant point: “I wish some of my friends who had spoken would place themselves in the place of these tribal people, place themselves in their conditions, study their views, realise what their ambitions and their aspirations are, and whether if they were in that place they would like those feelings and aspirations to be crushed to pieces and themselves just cowed down by the sword, or whether they would like to be ­won by love and by association and by the gradual understanding of one another.”

The good old reverend's words are as relevant today as they were in August 1949.

 

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