Schedule Areas and UTs
Constitution envisages a special system of administration for certain areas designated as ‘scheduled areas’ and ‘tribal areas’; 5th Schedule for Tribal areas; 6th Schedule for AMTM. Assam, Meghalaya, Tripura and Mizoram.
Objective
Tribal autonomy + Protect cultural distinctiveness + Unity with Diversity + backward, and special efforts need to be made to improve their condition.
Types of schedule areas
5th schedule areas:
Article 244 (1) of the Indian Constitution defines Scheduled Areas as the areas defined by President.
In India, there are 10 states having scheduled areas. Article 244 deals with the Scheduled and Tribal Areas.
6th Schedule areas:
The Sixth Schedule under Article 244 (2) of the Constitution relates to those areas in the States of Assam, Meghalaya, Tripura and Mizoram which are declared as “tribal areas” and provides for District or Regional Autonomous Councils for such areas.
Power of President with respect to schedule areas:
Power to list or delist any areas as schedule area + Can increase an area of schedule area in consultation with Governor + The law made by the Governor come into effect only when they are accepted by the President + Governor submit annually → President.
Power of Governor with respect to schedule areas:
The power to decide application of any central or state legislation over schedule areas and also modify it + make law + land allotments to Tribals + regulate decide money lending business + decide number of members and their appointment in TAC.
(Note: Governor act in consultation with President and not without it.)
Administration of 5th schedule areas:
Central and state executive power is also applicable to 5th SA + central has power to instruct states for administration + 73rd and 74th CAA does not extend automatically to 5th and 6th schedule areas.
The Tribal Advisory Council:
Constitutional body created under 5th Schedule + It consists of not more than 20 members + 75% seats in TAC are reserved for Tribal members of state legislature + Duty of Tribal Advisory Council is to advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the State as may be referred to them by the Governor.
Issues with 5th schedule areas:
Extra-ordinary power of administration and legislation, such powers are rarely exercised by Governor.
Sometimes, members of TAC belong to the state’s cabinet→ situation of conflict-of-interest and not be able to take adversarial stand in case of Cabinet’s decision going against the welfare of Tribals.
Issue related to PESA: poor implementation of PESA, Tribal communities have been gradually denied self-government and rights to their communities' natural resources, which were supposed to be provided under the law.
Crony capitalism→ land alienation.
6th SCHEDULE: Tribal Areas - Art 244 (2) and 275 (1)
It deals with the administration of Tribal Areas in 4 North-eastern States of Assam, Meghalaya, Tripura and Mizoram (AMTM).
Rationality: Tribes in AMTM have not assimilated much with the majority and still have thevirroots in their own culture, customs etc.
The tribal areas of AMTM are considered as Autonomous Districts: But they do not fall outside the executive authority of the state concerned.
1. Assam – Karbi Anglong, 2 Kachari, Bodoland, Dima Hasao, Rabha Hasong, Mishing, Tiwa, Deori
2. Meghalaya – Garo, Khasi, Jaintia.
3. Tripura: Hill dist,
4. Mizoram – Chakma, Mara, Lai.
Autonomous District Councils (ADCs):
The Sixth Schedule provides for autonomy in the administration of these areas through Autonomous District Councils (ADCs).
These councils are empowered to make laws in respect of areas under their jurisdiction, which cover the land, forest, cultivation, inheritance, indigenous customs and traditions of tribals, etc. and also to collect land revenues and certain other taxes.
ADCs are like mini state with Legislature, executive and judicial powers.
Power of Governor in 6th Schedule areas
Empowered to determine areas under the administration of the council.
Authority to form new autonomous districts. He can increase or reduce the area of any autonomous districts or Districts Councils.
Merge two or more DCs.
Issues Related to Sixth Schedule
Tribal-non tribal conflict: The Sixth Schedule discriminates against the non-tribal residents in various ways and infringes upon their fundamental rights, like the right to equality before the law (Article 14), right against discrimination (Article 15), and the right to settle anywhere in India (Article 19). This has resulted into violence and discrimination against non-tribal resulting in their exodus from North-eastern states.
Multiple Centres of Power: There are frequent conflict of interest cases between the District
Councils and the State Legislatures. For example, in Meghalaya, despite the formation of the state, the whole of the state continues to be under the sixth schedule causing frequent conflict with the state government.
Various tribal communities with different cultures and customs within one autonomous council has led to conflict and logjam in functioning of ADCs. for example Bodo Council and Chakma Council in Assam.
Elite capture of ADCs has perpetuated and institutionalized exploitation of poor and disempowered Tribals.
Members of ADCs use it as a forum for their future political ambitions rather than working for the welfare of Tribals.
Lack of coordination between the States governments and ADC= poor development work.
Poor oversight and vigilance → corruption in ADC.
Fifth and Sixth Schedules have no mention of women representation and gender equality.
Union Territories
What are Union Territories?
A union territory is a type of administrative division in the Republic of India. Unlike the states of India, which have their own governments, union territories are federal territories ruled directly by the union government (central government), hence the name "union territory".
The concept of union territories was not in the original version of the constitution, but was added by the Constitution (Seventh Amendment) Act, 1956.
Why Union Territories were envisioned?
States Reorganisation Commission recommended creation of a different category for these territories since they neither fit the model of a state, nor do they follow a uniform pattern when it comes to governance.
“Economically unbalanced, financially weak, and administratively and politically unstable”
territories can’t survive as separate administrative units without depending heavily on the Union government.
Factors
Safeguarding the rights of indigenous cultures+ strategic location + political instability.
Who can create UTs?
Indian Parliament by amending constitution through ordinary majority.
The Parliament of India can pass a law to amend the Constitution and provide a Legislature with elected Members and a Chief Minister for a union territory, as it has done for Delhi and Puducherry.
In general, the President of India appoints an administrator or lieutenant -governor for each UT.
Difference between states and UTs:
States are administrative as well as Political decentralization units while UTs are mere administrative one.
States are the administrative units having their own governments. On the contrary, UTs are ruled directly by the central government through Lieutenant Governor as the administrator.
He is appointed by the Central government and is also a representative of the President of India. Although UTs have the option of forming respective governments and having a Legislature with elected Members and a Chief Minister (like New Delhi and Puducherry), yetbthe powers of such governments are lesser than the state governments.
For UTs with LA, CM and CoM are appointed by President.
Oath is administered by Lt. Gov.
The Central Government can nominate up to three persons to be members of the Legislative Assembly of the UT.
The number of Council of Ministers should not exceed ten percent (15% in case of state assembly) of the total number of members in the Legislative Assembly of a UT.
The Constitution does not stipulate how tax revenue is to be devolved to the union territories, unlike for the states.
The funds devolution to union territories by the union government have no criteria where all the revenue goes to the union government.
Power of President with respect to UTs:
President of India is the chief administrator of union territories per Article 239
According to Article 240, the President of India has the power to make regulations for certain UTs. The regulations could be for peace, progress and good government of the UT.
In case a UT has a Legislature in place, the President shall not have the authority to make any regulation with effect from the first day of the meeting of the Legislature.
However, if the legislature is dissolved, or its functioning remains suspended, the President can immediately take over and make regulations for good governance of that UT.
President can amend any law of Parliament or decide manner of its application on UTs.
GNCT Delhi (Amendment) Act, 2021
Background
The GNCTD Act was enacted in 1991→ elected government in Delhi.
69th Amendment Act, 1992→ two new Articles 239AA and 239AB.
Article 239AA→ State assembly power to make law except Land, Police, Public order + Council of
Ministers for Delhi (<= 10% of total LA strength) + in case of conflict B/w Cabinet and LG, President’s decision shall be final.
Article 239AB→ Power of President to suspend LA and impose President rule.
Bone of contention: power struggle between LG and Cabinet.
SC 2018 decision:
[1] government was not under obligation to seek the concurrence of the L-G on its decisions
[2] constitutional primacy of representative government and cooperative federalism.
Provisions of GNCT Delhi (Amendment) Act, 2021
“government” in the National Capital Territory of Delhi meant the Lieutenant-Governor of Delhi
Discretionary powers to the L-G over Delhi legislative assembly decisions.
Prohibits Legislative Assembly to:
(i) consider matters of day-to-day administration (ii) conduct inquiry in relation to administrative decisions.
• LG will have power to reserve certain Bills passed by the LA for President + any matter outside purview of LA.
Criticisms against the GNCT Delhi (Amendment) Act, 2021
(1) Undermines authority of elected government + legitimacy of electoral democracy.
(2) Position of CM and CoM of Delhi → rendered meaningless. Adversely impacts → federal polity.
(3) Requirement of LG’s opinion but has no time frame → delays in pressing matters of governance.
(4) Bill passed through voice vote. Not much deliberation/debate/scrutiny.
(5) against the principles of cooperative federalism
(6) against SC decision of 2018 where it upheld primacy of elected Government over appointed LG.
Arguments in favour of the act:
• 1991 act lacked clarity of power division between Delhi Cabinet and LG→ friction + conflict + ambiguity + poor accountability.
Should Delhi be granted fill statehood?
(1) Arguments in favour:
(a) very large population → day-to-day governance issues
(b) No control over law and order, land and police inhibits → functions of a responsible government
(c) inability in implementing welfare schemes
(d) Continued conflict with LG – delay and disruption of admninistration.
(2) Arguments against:
(a) Balakrishnan report → “Delhi as the national capital belongs to the nation as a whole”
(b) law and order and maintenance for city having → Union government, SC, Parliament, Foreign embassies cannot be given to a State government
(c) Control of Union → National Interest
(d) examples from world [Washington DC, Canberra].
(3) Way forward:
(a) Pragramtic federalism;
(b) More say in law and order, municipal and land management matters to the State government;
(c) Removal of conflicts between LG and Cm through detailed provisions.
The Jammu and Kashmir Reorganisation Act, 2019
Divided Jammu and Kashmir into two parts: the Union Territories of Jammu and Kashmir and Ladakh.
The Act also repealed Article 370, which had granted Jammu and Kashmir unique status.
5 and 1 LS seats for J&K and Ladakh respectively.
The Union Territory of Jammu and Kashmir has a legislative assembly, whereas the Union Territory of Ladakh does not, and is controlled exclusively by the Lieutenant Governor. (both shall have common LG).
LG shall appoint CM of J&K.
The L-G will have the power to promulgate ordinances
Reservation for SC/ST in LA and power of LG to nominate two women in case they are inadequately represented.
The Jammu and Kashmir Legislative Assembly has the right to pass a law for any given part of the Union Territory of J&K related to any of the matters listed in the Indian Constitutions State’s List except for the “Police” and “Public Order.”
Jammu and Kashmir and Ladakh High Court is the common high court for Jammu and Kashmir and Ladakh union regions.
The restriction on leasing land to those who are not permanent residents of Jammu and Kashmir has been lifted as part of these modifications.
Arguments in favor:
Article 370 was seen as discriminatory on the basis of gender, class, caste and place of origin.
Open doors to private investment in J&K would be opened leading to development and job creation.
Article 370 has prevented integration of J&K into mainstream perpetuating separatism.
Arguments against: Hasty and stealthy manner of legislation+ lack of meaningful debate and public participation + further alienation and apprehension of people of J&K.