15 September 2019 07:53 PM

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LINDA CHHAKCHHUAK | 23 AUGUST, 2019

The Reality of Autonomy and Special Status in the Northeast Region of India

Kashmir imbroglio tests special articles in the Indian Constitution


SHILLONG: Even when functioning at its best, India is not a perfect democracy. But it is its Constitution which is distinguished for its expansive intellectual vision of what a democracy should be like. Its philosophy of embracing its minor partners and the differences whether historical or cultural, to bring them within the constitutional framework, created the path for the march forward in diversity as one nation.

On principle the Indian Constitution is one of the best examples of democratic visioning. There are articles which provide for the personal and customary practices to continue, protection of lands and territories belonging to tribes and communities, checks against the influx of non-state indigenous people, reservation of seats for Scheduled Tribes and Scheduled Castes in government services, in the state Assemblies and Lok Sabha and so on.

The liberal suspension of the majority communities’ fundamental rights to enable the implementing of these various protective schedules and articles, such as the Sixth Schedule, the Article 371 series, and to a lesser extent the Fifth Schedule for the numerically small communities of tribes, is an extraordinary quality of the Constitution.

The tribes and people of the northeastern states - Assam, Arunachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura - are some of the groups which collectively enjoyed the privileges of such protective discrimination as envisaged by the Indian Constitution. The Sixth Schedule, also known as a constitution within the Constitution, allows Autonomous District Councils (ADCs) to make laws forbidding outsiders from buying tribal land, restricts entry and trade by outsiders, and protects the people’s customs and therefore, their identity.

In fact, given the failure of the Fifth Schedule to protect the Central Indian tribes and their lands, many Adivasi movements are looking towards the Sixth Schedule which has more powers, particularly legislative, as an alternative. In the latest figure given by the Government of India as mentioned in its 125th Amendment Bill seeking to amend the Sixth Schedule it is said that approximately one crore or 10 million people live under the umbrella of the Sixth Schedule in 10 ADC areas in the region spread across Meghalaya, Mizoram, Assam and Tripura.

Added to the provisions of the Sixth Schedule are the Articles 371A for Nagaland and Article 371G for Mizoram, which endow them with special powers to reject any new Acts of Parliament unless accepted through a resolution passed by the state’s Legislative Assembly, and protect the ownership of their land, customs and religion.

One of the foundations of Autonomy in Mizoram, Nagaland, and Arunachal Pradesh is the application of the Inner Line Permit Regime under the Bengal Eastern Frontier Regulation of 1873, by which citizens from the other parts of India have to take permits to enter these states to check influx. Outsiders cannot buy land in the Sixth Schedule and other tribal areas such as in the hills of Manipur.

All these different types of special status were not conferred as a gift to the tribes and the other struggling communities, but were the result of tough debates and negotiations by the leaders of the tribes at the time of creation of the Indian nation in the Constituent Assembly - side by side with much struggle and bloodshed outside of the constitutional arenas.

The debates in the Constituent Assembly were intense between those who wanted an assimilative Constitution and the other side who talked about special protection for the tiny populations of diverse peoples to allow them space to live and grow as the people they are.

On the other hand, corresponding to what was happening at the top, in the field there were equally intense debates within the tribes and communities, divided between those who wanted to take their chances with the Indian Union provided there were safeguards, and those who were all for striking out on their own or as crown colonies.

The Sixth Schedule was a result of these negotiations. The important clauses of this schedule were the result of the demands of hill tribes of then Assam, mainly led by the Khasi, Mizo, Karbi etc and supported by forward-looking Assamese politicians.

In this crown of open minded acceptance of the ‘others’ that brings glory to the Indian vision, one could well declare that the biggest jewel is Article 370 - a promise that a unique history can survive side by side with the greater stream of Indian polity, sailing along with it in the same sea without being gobbled up by what can be called democratic majoritarianism.

It would not be too far wrong to assume that the National Socialist Council of Nagaland, a thorn for long for the Indian government as it had waged a war for independence, was seduced to the negotiating table in 1997 by the lure of Article 370. If Kashmir could have its own constitution, its own flag etc then why not Nagalim?

The possibilities are enticing for any group dreaming of self-determination or self-rule, albeit under the canopy of the Indian Constitution, of which there are many in India’s northeastern region.

But this North Star of federalism in the Indian Constitution was torn down on August 5, not by the enemies of the country but by its own leaders, who were elected and sworn to keep the Constitution intact if not better, by working towards making it even more inclusive and expansive to cover all the struggling nationalities within it.

India is a miracle work in progress, wrote lawyer Rajeev Dhavan in an article published last year in a mainstream newspaper. He pointed out a truism, that “If the country were to try and design a Constitution now, it would fail. The Constitution of Pakistan was declared in 1956 but fell to a military dictatorship in 1958. This was the fate of other Constitutions. Sri Lanka went into constitutional turmoil, as, indeed, did neighbouring Burma. It is rightly said that India’s Constitution became the ‘cornerstone of the nation’. Piloted by B.R.Ambedkar, its secret lay in allowing free discussion, negotiating problems with a preparedness for compromise.”

The marvel that has so far kept the mindboggling diversity of nationalities, cultures, languages and religions moving together is the expanse of autonomy the Constitution offers through these special articles. It automatically dilutes hard-core separatism that is only kept in control by the Indian establishment because the Constitution has these in-built safety valves and fuses. These are useful to let out the pressure and stop a political conflagration from spreading and uniting dissenters across the board.

Elsewhere another expert has rightly pointed out that for proper understanding and implementation, the Indian Constitution cannot be read on its own. It has to be read alongside the debates in the Constituent Assembly. They remain part of each other like body and soul - if the body is used bereft of the soul it only ends up as lust for power.

The abrogation of Article 370 which grants autonomy to Jammu and Kashmir, and the callous lockdown that has accompanied it since August, is looked on with uncertainty in the various levels of northeastern India’s socio-polity. Leaders of the bigger states of the region, Nagaland and Mizoram, which have Articles 371A and 371G respectively, particularly sounded the alarm and called on the people to be alert, even as they expressed confidence that these articles are safe.

Some politicians are already making a call for a pan-India tribal platform to face the expected storm.

But the other states do not have the protection negotiated by Nagaland and Mizoram.

Articles in the 371 series ie: Article 371B (Assam), Article 371C (Manipur) and 371H (Arunachal Pradesh) make no promise of special autonomy to these states, nor give the indigenous people ownership of their land and resources as do Articles 371A and G. Instead, these articles give extra power to the Governors to override the State Assembly if they deem it necessary in matters of security or tribal welfare.

Arunachal Pradesh has been demanding that their Article be changed to A or G, while Manipur and Meghalaya have been demanding the implementation of the Inner Line Permit.

Despite being covered under the special Articles and having the status of states, vast sections of the people of the tribes in the northeastern states are not satisfied with their current situation, and have been demanding more autonomy. The demands range from seeking district councils under the Sixth Schedule to demands for separate states.

Movements for sovereignty based on ethnic homelands have been crushed in the past, but their roots lurk in the dark belly of this ethnically sensitive region.

It is because of this that there are ambivalent stances on the abrogation by decree of Article 370. In stripping 370, an article that emerged out of a historical agreement between two political entities during the formation of the modern India in the 1940s, many leaders here feel the Government of India has crossed the limits of constitutional propriety.

It’s a signal that the floodgates can be opened and this thought breeds insecurity. They may well strip the region of its special status. The downgrading of J&K from a state to a Union Territory particularly hurt as it opened an entirely new way of dealing with dissent which is frighteningly devoid of any due process or the rule of law.

There are more than 200 tribes and more sub-tribes and clans in the region with as many languages and dialects. The tribes with the biggest population number no more than a few lakhs, while the smallest have a population of fewer than 3,000 persons.

The special Articles and systems of government were envisaged to safeguard these populations from being overwhelmed by the peoples of the plains. Now, however, the clamour for autonomy is emanating from within the states where the smaller groupings want to escape the hegemony of the larger tribes. Plagued by this syndrome, the world of tribes has been in inner turmoil for decades.

Though the political leadership at the apex may express their unease at the abrogation of Article 370, they’re probably more anxious that one of its concomitants, i.e. union territory status for Ladakh by chipping it away from J&K, will open a Pandora’s box of demands in the region. It’s the spring rain that will bring forth a mushroom of dormant demands within the states. Every state in the region stares at the possibility of balkanization if the Centre decides to play footsie with these sundry demands. All the states here are challenged by this.

At another level, the Special Status regime is looked upon with contempt and derision by a section of people from the plains, including some from within the tribes themselves, who want them revoked.

These constitutional fences, created by the founding fathers and later by their heirs to protect the tiny populations of unique tribes and ethnic communities, unique histories and traditions have been under constant attack since the day they were set up.

The reservations and quotas for tribes and castes are questioned by the powerful elite who want them ended. The Inner Line Permit and the Trading by Non-Tribals regulations have been challenged dozens of times in the courts, as have the various clauses of the Sixth Schedule.

So far they have held. But the future looks gloomy with Kashmir hanging in limbo. Ultimately, confidence will only be restored when Jammu and Kashmir is restored to its Constitutional status.
 

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