Context: The Ministry of Home Affairs (MHA) has agreed to examine the demands of civil society groups in Ladakh and has formed a high-powered committee to assess the feasibility, with specific terms of reference.
Ladakh’s Demand for Inclusion
On 5th August 2019, the erstwhile state of Jammu and Kashmir (J&K) was bifurcated into two Union Territories: J&K with a legislature and Ladakh without a legislature.
Ladakh, the newly created Union Territory with a population of 2.74 lakh (2011 Census), has concerns regarding the protection of land, resources, and employment for the locals. The following are the main concerns for the demand for the inclusion in 6th schedule:
- The UT of J&K would have a legislature, the UT of Ladakh would not lead to administration of the region being completely in the hands of bureaucrats.
- The changed domicile policy in Jammu and Kashmir has raised fears in the region about its own land, employment, demography, and cultural identity.
- The UT has two Hill councils in Leh and Kargil, but neither is under the Sixth Schedule. Their powers are limited to collection of some local taxes such as parking fees and allotment and use of land vested by the Centre.
Inclusion of Ladakh in Sixth Schedule
- The National Commission for Scheduled Tribes recommended the inclusion of Ladakh under the Sixth Schedule, noting that the new UT was predominantly tribal (more than 97%), people from other parts of the country had been restricted from purchasing or acquiring land there, and its distinct cultural heritage needed preservation.
- Notably, no region outside the Northeast has been included in the Sixth Schedule. In fact, even in Manipur, which has predominantly tribal populations in some places, the autonomous councils are not included in the Sixth Schedule. Nagaland and Arunachal Pradesh, which are totally tribal, are also not in the Sixth Schedule.
- “Ladakh’s inclusion in the Sixth Schedule would be difficult. The Constitution is very clear, the Sixth Schedule is for the Northeast. For tribal areas in the rest of the country, there is the Fifth Schedule. However, it remains the prerogative of the government — it can, if it so decides, bring a Bill to amend the Constitution for this purpose.
Recent Developments in Ladakh’s Demand for Sixth Schedule
The Ministry of Home Affairs has constituted a committee chaired by Minister of State for Home Nityanand Rai with the following terms of reference:
- To discuss measures to protect the region’s unique culture and language taking into consideration its geographical location and strategic importance.
- To ensure protection of land and employment for the people of Ladakh.
- To discuss measures for inclusive development and employment generation in the region.
- To discuss measures related to the empowerment of the Ladakh Autonomous Hill District Councils of Leh and Kargil.
- To examine constitutional safeguards that could be provided to ensure the measures and protection detailed above.
Sixth Schedule
Sixth schedule to the constitution provides power to tribal communities to administer the tribal areas in Assam, Meghalaya, Tripura and Mizoram under the provision of article 244(2) and 275(1) of the constitution.
Article 244 provides a special system of administration for certain areas designated as ‘scheduled areas’ and ‘tribal areas.
Article 275 makes provisions for statutory grants to be charged on Consolidated Fund of India. Such grants also include specific grants for promoting the welfare of the scheduled tribes or for raising the level of administration of the scheduled areas in a state.
The Sixth Schedule under Article 244 provides for the formation of autonomous administrative divisions — Autonomous District Councils (ADCs) — that have some legislative, judicial, and administrative autonomy within a state.
- ADCs have up to 30 members with a term of five years, and can make laws, rules and regulations with regard to land, forest, water, agriculture, village councils, health, sanitation, village- and town-level policing, inheritance, marriage and divorce, social customs and mining, etc.
- The Bodoland Territorial Council in Assam is an exception with more than 40 members and the right to make laws on 39 issues.
- The Sixth Schedule applies to the North-eastern states of Assam, Meghalaya, Mizoram (three Councils each), and Tripura (one Council).
Advantages of Inclusion In Sixth Schedule
- Autonomous District Councils (ADC): ADCs are bodies representing a district to which the Constitution has given varying degrees of autonomy within the state legislature. Each autonomous district council consists of 30 members, including nominated and elected members.
- Autonomous region: If there are different Scheduled Tribes in an autonomous district, it can be divided into autonomous regions.
- Legislative Power: ADCs are empowered to make legislative laws with due approval from the governor.
- Limitation to power of Parliamentary or state legislature over autonomous regions: 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.
- Judicial powers: councils can constitute village courts within their jurisdiction to hear trials of cases involving the tribes.
- Regulatory power: The district council can establish, construct or manage primary schools, dispensaries, markets, ferries, fisheries, roads and so on in the district. It can also make regulations for the control of money lending and trading by non-tribal. But such regulations require the assent of the governor.
- Tax revenue collection: The district and regional councils are empowered to assess and collect land revenue and to impose certain specified taxes. They can also receive grants-in-aids from the Consolidated Fund of India to meet the costs of schemes for development, health care, education, roads and regulatory powers to state control.
Issues with Sixth Schedule
- No Decentralisation of powers and administration: For example, in Bodo Territorial Area districts, there is only district council which elects few people who enjoy unbridled power. Thus, units should be created that will represent people at all strata.
- Legislative power of state over councils: The laws made by the councils require the assent of the governor. This process has no time limits which delayed the legislation for years. Also, Para 12 (A) of the Sixth Schedule clearly states that, whenever there is a conflict of interest between the District Councils and the state legislature, the latter would prevail.
- Conflict in discretionary powers of governor: There are differing views over the discretionary power of governors with respect to the administration of these areas. Thus, conflict is there on the requirement of consultation of governor with council of ministers.
- Lack of codification of customary law: Customary laws need to be codified and brought into practical use to ensure protection of tribal cultural identity.
- Lack of skilled professionals: Almost all Councils do not have access to planning professionals which results in ad-hoc conceiving of development projects without proper technical and financial consideration.
- Financial dependency: Autonomous councils are dependent on their respective state governments for funds in addition to the occasional special package from the Centre. There is no State Finance Commission for recommending ways to devolve funds to District Councils and Regional Councils.
- Lack of development: Although 6th schedule was enacted to give more benefit to the people and bring fast paced development, yet due to no panchayats or parishad at people level, they have no power and money which non-6th schedule areas have for implementation of various schemes like MGNREGA etc.
- Corruption: Financial mismanagement and rampant corruption have often been detected in the functioning of different Councils under the Sixth Schedule provision.
WAY FORWARD
- Creation of elected village councils in all areas and ensuring accountability of Village Councils to Gram Sabha.
- Ensure regular election conducted by the State Election Commission.
- Recognize Gram Sabha under law and specify its powers & functions.
- Ensure women and other ethnic minorities are not excluded from representation in council. · Bring transparency in planning, implementation and monitoring of developmental programmes.