125TH CONSTITUTIONAL AMENDMENT BILL: AN ANALYSIS

INTRODUCTION

The Constitution (One Hundred and Twenty-Fifth Amendment) Bill was introduced on the 6th Day of February in the year 2019 in Rajya Sabha. It was introduced by the then Home Minister, Shri Rajnath Singh. The bill, broadly, seeks to amend the Article on Finance Commission and the 6th Schedule of the Constitution.[1] After it got tabled, the Bill was referred to a Standing Committee headed by Anand Sharma, a member of Rajya Sabha and Deputy Leader of Opposition, for further discussions and deliberations. The Committee had submitted its report on the 5th Day of March in the year 2020. The vision of the Amendment is to ensure democratic practices at the grass-root level and to encourage people of the tribal areas (mentioned in the 6th Schedule) to take part in the decision-making and governance.[2] For, this has been their demand since India got independence. The Amendment Bill also seeks to provide financial autonomy to the Autonomous Developmental Council (ADC).

PROVISIONS

This amendment concerns the states of Assam, Meghalaya, Tripura, and Mizoram.[3] The provisions of the said amendment have been described below. It has been provisioned that the tribal areas in the territorial jurisdictions of the above-mentioned states will be ‘autonomous districts’.[4] The administration of these districts will be carried out by District and Regional Councils. The Bill seeks to amend this to provide for Village and Municipal Councils in addition. The District Councils may make laws on issues like delimitation of constituencies, powers and functions of Village and Municipal Councils, etc.[5]

The Amendment Bill also provides for the appointment of the Finance Commission for these states. The Commission is expected to make recommendations regarding the distribution of taxes between states and District Councils; grant-in-aid to District, Village and Municipal Councils from the Consolidated Fund of the state; etc. Apart from the functions mentioned in Article 280 of the Constitution, the Bill mandates the Commission to make recommendations on measures to increase the Consolidated Fund of the States to provide resources to District Councils, Village Councils, etc.[6] The Bill also carries provisions for the Election of Members to councils and their grounds for disqualification.[7] It says that all the elections to District Councils, Regional Councils, etc. will be conducted by the State Election Commission, for these four states. In case of disqualification, defection has been added as a ground for disqualification of members of the Council(s).[8]

STANDING COMMITTEE REPORT

The significant findings of the committee have brought to notice some concealed thoughts and critical aspects. Though the major findings of the committee are based on the statements and responses of the Ministry of Home Affairs and respective State governments, the ground reality of the analysis of the committee cannot be simply ruled out.[9] The exceptional state of Meghalaya is exempted from some of the provisions of the Bill. This has been strongly emphasised in the Committee Report. The bill enhances the membership of all the Autonomous District Councils (ADCs), except the Bodoland Territorial Council in Assam. Considering the states of Assam, Mizoram, and Tripura, the Committee mentioned that the increase or decrease in the membership should be based on some rational criteria.[10] Additionally, the Bill requires for the nomination of two members from an unrepresented tribe. The Committee analysed that the representation should be put to priority and strongly urged that the nominations should be from tribes that could not get elected. A reasonable criterion should be sought to avoid arbitrariness. This would resultantly increase the representation of a particular tribal community in the decision-making.

The state of Meghalaya has been exempted from the clause of formation of Village and Municipal Councils.[11] The Committee has been critical of this clause and has noted that this goes against the basic democratic principles and suggested that there should be a time limit within which this exemption should be removed. The Bill also contains a provision that gives the State Election Commission the authority to conduct all the elections to the District, Regional, Village, and Municipal Councils. This provision would not apply to Village or Municipal Councils in Meghalaya. An explanation provided by the Meghalaya Government, noted by the Committee, is that the elections to the Village Councils do not conclude keeping adult suffrage as fundamental.[12] The Committee reiterated that even this clause goes against the democratic principles and suggested a time limit of the exemption. The Committee also acknowledged that there is a shortage of funds in the Autonomous Development Council (ADC) which in turn is hampering the due process of development. The Committee has suggested that the State Finance Commission should earmark funds for ADCs.

ANALYSIS

This amendment symbolises the realisation of the political dominion to the far North-East of India which seemed discrete since the time of independence. It is also expected that this amendment will bridge the gap between the mainland and the North-Eastern part of India. One of the primary aims of introducing this amendment is to give the above-mentioned tribal areas a system parallel to Panchayati Raj for their better participation in decision-making and increasing democratic spirit.[13] A mere assessment of the geo-demographic structure of the intended jurisdiction would provide us with the inference that the initiated amendment would impact around one crore tribal population of the state of Assam, Meghalaya, Tripura, and Mizoram.[14] The union government silently introduced this Constitutional Amendment Bill amid the disturbance caused due to Citizenship Amendment Act, 2019. This is the reason that this bill has not been talked about in great detail and amongst the general public. The long-standing demand of the ADCs regarding financial autonomy appears to get fulfilled from this amendment. The government appears to have taken necessary measures and has put a Constitutional Authority (Finance Commission) to task for keeping the process seamless and transparent. One of the most celebrate-worthy clauses is one related to the reservation of women to the extent of one-third of the members in the Village and Municipal Councils.[15] Though, the mention of the state of Meghalaya as an exception to multiple clauses of the bill remains unexplained. The very idea of the second half of the Rule of Law[16] is being infringed upon. Talking about Equality amongst Equals[17] would be fair as we have been, only, talking about the tribal people from the northeast. Exempting the tribes from the ADCs of Meghalaya stating no particular reason would certainly put the tribes from the said state back in time and may, further, suffer due to this unexplained clause of the legislation.

Stating further, it is a matter of gross failure on the part of lawmakers- since independence- that we have to resort to the clause of Equality amongst Equals as a primary argument when talking about the northeast. It should have been used as an argument to strengthen, beautify and celebrate the incredible diversity of our country. It is highly advised that we resort to a minimum common program regarding the northeast and collectively head towards the realisation of the clause of Equality before Law[18]. It is disturbing to see that some of the basic laws of the country like the Indian Penal Code do not apply to the sixth schedule areas. A minute escape sought by the union government is one about the authority. It has been mentioned that the authority of increment and reduction of seats rests in the hands of the governor. It is well known that a governor is the representative of the union government in the states and acts in accordance with the union government. This leaves states only with the suggestive authority regarding the above-mentioned clause.

CONCLUSION

Taking into consideration the aforementioned provisions and analysis, it can be concluded that the degree of success of this legislation is quite high. The approach taken by the lawmakers of thoroughly assessing the bill by referring it to the standing committee is reasonable and welcoming. The report submitted by the committee has cleared a lot of state-specific questions which symbolise the due respect given to any particular state. The idea of inclusion of a Constitutional Body, in this case, the Finance Commission, into the legislation for keeping a check upon the allocation and distribution of funds should be considered exceptional. This would help Municipal and Village Councils in becoming financially strong and unaccountable to administrative bodies. The fulfilment of this long-standing demand would encourage peace amongst the community and between the community and the state. The government has rightly demonstrated its concern and intimacy towards the northeast by tabling this amendment. Though, the odds of the bill cannot be ruled out. The government needs to specify its stance on the issue of Meghalaya. It needs to define a timeline for the state’s exclusion. This would help strengthen the relationship between New Delhi and the Northeast. It would also nourish the ‘Chicken’s Neck’ which is under the eyes of another “emerging superpower” on the world forum.    

Author(s) Name: Vedant Upadhyay (Government Law College, Mumbai)

References:

[1] Government introduces Bill on northeast (The Hindu, 9 February 2019) https://www.thehindu.com/news/national/government-introduces-bill-on-northeast/article26219289.ece accessed 18 February 2022

[2] Ibid

[3] Constitution of India, 1950, sch 6

[4] Ibid

[5] The Constitution (One Hundred Twenty-fifth Amendment) Bill, 2019 (PRS Legislative Research, 6 February 2019) https://prsindia.org/billtrack/the-constitution-one-hundred-and-twenty-fifth-amendment-bill-2019 accessed 19 February 2022

[6] Ibid

[7] Ibid

[8] Ibid

[9] Standing Committee Report Summary (PRS Legislative Research, 5 March 2020) https://prsindia.org/billtrack/prs-products/prs-standing-committee-report-summary-3175 accessed 21 February 2022

[10] Ibid

[11] Pratik Patnaik, Constitution (125th Amendment) Bill could bridge gap between mainland and North East, but problematic provisions must be reappraised (Firstpost, 16 April 2020) https://www.firstpost.com/india/constitution-125th-amendment-bill-could-bridge-gap-between-mainland-and-north-east-but-problematic-provisions-must-be-reappraised-8266311.html  accessed 20 February 2022

[12] Ibid

[13] No plan to introduce Panchayat system in Assam tribal areas (The Hindu, 23 March 2021) https://www.thehindu.com/news/national/other-states/no-plan-to-introduce-panchayat-system-in-assam-tribal-areas-mha-says/article34144147.ece accessed 23 February 2022

[14] Government introduces a bill on northeast (The Hindu, 9 February 2019) https://www.thehindu.com/news/national/government-introduces-bill-on-northeast/article26219289.ece accessed 18 February 2022

[15] Pratik Patnaik, Constitution (125th Amendment) could bridge gap between mainland and North East, but problematic provisions must be reappraised (Firstpost, 16 April 2020) https://www.firstpost.com/india/constitution-125th-amendment-bill-could-bridge-gap-between-mainland-and-north-east-but-problematic-provisions-must-be-reappraised-8266311.html accessed 23 February 2022

[16] Constitution of India, 1950, art 14

[17] Ibid

[18] Ibid

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