Sixth Schedule demand for Ladakh

Context: Prominent climate activist Sonam Wangchuk has been detained on the Delhi border as he led a group of protestors to petition the government for inclusion of Ladakh in the Sixth schedule.

Historical background of fifth Schedule and Sixth schedule:

• Pre-British Era: Tribal populations had autonomy and were not fully subjugated by earlier Muslim rulers. Tribes maintained control over their forests and ancestral lands with their customary laws intact.
• British Colonial Impact: British forest policies restricted tribal movement and denied traditional rights over land. Discontent led to tribal revolts, such as, Kol Rebellion (1831-32), Santhal Revolt (1885), Munda Rebellion (1899-1900), Bastar Rebellion (1911).
• British Isolation Policy: In response to tribal uprisings, the British adopted a policy of "isolation."
• Government of India Act, 1935: It created 'excluded' and 'partially excluded' areas:
  • Excluded Areas: General laws did not apply here; governance by the Governor.
  • Partially Excluded Areas: Laws applied with modifications; also governed by the Governor.

Inherent idea behind the Sixth Schedule:

• To uphold the spirit of asymmetrical federalism.
• To maintain a distinct identity and exclusiveness of tribals. 
• To safeguard tribal territories and assets, preventing their transfer to non-tribal entities.
• To keep away intrusive elements and shield the tribal communities from exploitation or marginalization by non-tribal groups, while also preserving and nurturing their unique cultural and social heritage
• To maintain the sanctity of geographical and cultural ecology.
• To provide in-built conflict resolution mechanisms and features of sustainability of biodiversity and natural resources.
• Developing indigenous governance institutions.

About Sixth Schedule:

• 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: It provides a special system of administration for certain areas designated as ‘scheduled areas’ and ‘tribal areas.’ 
• The Sixth Schedule under Article 244 also provides for the formation of autonomous administrative divisions — Autonomous District Councils (ADCs) — that have certain 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. 
  • However, 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).
• 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. 

Difference between fifth Schedule and Sixth Schedule:

Constitutional basis for these Schedules:

• Article 14: It recognizes the right to equality before law and equal protection of the law. The Constitutional provisions as well as numerous judicial precedents firmly establish that a mere ‘formal’ equality approach has been rejected. Instead, the Constitution clearly recognizes that to be completely meaningful, a ‘substantive’ approach to equality has to be adopted, and therefore the historical discrimination of certain groups and classes must not only be abjured by the state, but concrete steps must be taken to reverse the present consequences of such historical discrimination.
• Article 15: Prohibits discrimination by the state of any citizen on grounds of religion, race, caste, sex, place of birth, or any of them. The Article insists on affirmative action, in the form of special provisions for ‘socially and educationally backward classes of citizens or for Scheduled Tribes’, as a part of this right
• Article 17 (prohibition of untouchability in any form) are instances of specific areas where the Constitution requires the state to take an affirmative and pro-active approach.
• Article 38: It places a duty on the state to “secure a social order in which justice, social, economic and political, shall inform all the institutions of the national life” and in particular to minimize inequalities in income and eliminate inequalities in status among individuals and amongst groups of people.
• Article 39: It contains critical obligations on the state to direct its policy towards what has come to be known as ‘distributive justice’, with respect to adequate means of livelihood, ownership and control of material resources, minimization of concentration of wealth in the economic system, and so on.
• Article 46: Contains an obligation on the state to promote the education and economic interests of weaker sections, in particular the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation.

Issues in the operationalization:

• The autonomy of the Fifth and Sixth Schedule areas are more on paper than in actual practice. The regulations made by the Governor in ‘scheduled areas’ are subject to approval by the Central government.
• Political dynamics: The laws made by ADCs in ‘tribal areas’ are subject to the approval of the Governor of the State. When different parties are in power at the Centre, State as well as ADC, political differences affect the autonomy of these areas. 
• Limited geographical scope: The Sixth Schedule covers only specific areas, leaving many tribal communities excluded, resulting in unequal treatment. For example, it applies only to certain tribal regions in Assam, Meghalaya, Tripura, and Mizoram.
• Ineffective decentralization: There is often a lack of genuine decentralization of powers and administration in Sixth Schedule areas. For instance, there is only one District Council for the entire Bodo Territorial Area districts.
• State legislative power over autonomous councils: Laws passed by the autonomous councils require the Governor's approval, and in case of conflicts between the District Councils and the state legislature, the state legislature's decisions take precedence.
• Financial dependency: Autonomous councils rely heavily on their respective state governments for funding, along with occasional special packages from the central government. For example, the lack of timely establishment of State Finance Commissions hampers the devolution of funds to District and Regional Councils.
• Corruption: The operations of various councils in Sixth Schedule areas have been plagued by corruption and mismanagement of funds. Dima Hasao district is under the scrutiny of NIA and CBI f or the alleged misappropriation of over Rs 1,000 crore of government funds. 
• Shortage of skilled professionals: Autonomous councils face a shortage of skilled professionals, leading to poorly planned development projects that lack proper technical and financial evaluation.
• Failure to codify customary laws: The councils have not succeeded in codifying the customary laws of local tribal populations.

Need for further reforms:

• Clear guidelines need to be laid down and followed to uphold the spirit behind the provisions of the Fifth and Sixth schedule.
• There are numerous ST habitations across the country, both within the 10 States under the Fifth Schedule and other States — that are not notified as ‘scheduled areas’, thereby denying these areas constitutional rights and protection. These need to be notified as ‘scheduled areas’ after due diligence.
• The 125th Constitutional amendment bill (2019) introduced and pending in Rajya Sabha aims to grant more financial, executive and administrative powers to the existing 10 ADCs. The Union government has agreed to form a committee headed by the Minister of State for Home Affairs to resolve the issues that have been holding up the passage of this bill. This process needs to be expedited to the satisfaction of all stakeholders.
• Arunachal Pradesh Assembly and the Manipur Hill Area Committee for the ‘Hill areas’ in the State have passed resolutions in recent years for their inclusion in the Sixth Schedule. There is a growing demand for the inclusion of the Union territory of Ladakh as well in the Sixth Schedule. These demands have to be examined promptly and necessary decisions taken at the earliest to protect the interests of the tribals in these areas.
• Recognition and vesting of forest rights to tribals under the Forest Rights Act, 2006 should be ensured throughout the country including in the Fifth and Sixth schedule areas.

Case for Inclusion of Ladakh in Sixth Schedule:

• In September 2019, 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, 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.