The Complexities of Articles 371A and 371G: Union-State Conflicts and Lessons from the Sixth Schedule

India’s Constitution reflects its commitment to preserving the unique cultural, social, and political identities of its tribal regions. Articles 371A (Nagaland) and 371G (Mizoram) are notable examples of this commitment, granting these states autonomy over critical areas like customary law, land ownership, and resource management. However, the practical implementation of these provisions often leads to jurisdictional conflicts with the Union and Concurrent Lists under the Seventh Schedule, resulting in legal and administrative complexities.

These challenges are further highlighted by the Naga Accord, which underscores the historical and political significance of Article 371A while exposing its ambiguities. In contrast, the Sixth Schedule, governed by Article 244(2), provides a more structured and decentralised model of tribal governance through Autonomous District Councils (ADCs). This article explores the interplay between Articles 371A and 371G, the lessons from the Sixth Schedule, and the implications of landmark rulings like the Supreme Court’s decision in Regional Provident Fund Commissioner vs. Shillong City Bus Syndicate and other judgements.

Articles 371A and 371G: Safeguarding Tribal Autonomy or creating constitutional imbroglio?

Article 371A – Nagaland

Article 371A emerged as a direct result of the 16-Point Agreement of 1960, which paved the way for Nagaland’s statehood in 1963. It provides that no Act of Parliament will apply to Nagaland in respect of:

1. Religious or social practices of the Nagas,
2. Naga customary law and procedure,
3. Administration of civil and criminal justice according to customary laws,
4. Ownership and transfer of land and its resources, unless the Nagaland Legislative Assembly decides otherwise.

This provision reflects the intent to preserve Naga traditions and self-governance. However, its broad language and the absence of detailed mechanisms for implementation have led to conflicts, particularly in areas such as resource management and customary law enforcement.

The Naga Accord, including the 16-Point Agreement and the more recent Framework Agreement of 2015, has further shaped the application of Article 371A. The Framework Agreement, signed between the Government of India and the National Socialist Council of Nagalim (NSCN-IM), aims to address decades of insurgency and the demand for a “Greater Nagalim” by enhancing autonomy. However, the lack of clarity on its provisions has added new layers of complexity to the governance of Nagaland.

Article 371G – Mizoram

Similarly, Article 371G grants Mizoram autonomy in matters concerning:

1. Religious or social practices of the Mizos,
2. Customary laws and procedures,
3. Administration of justice in accordance with customary laws,
4. Ownership and transfer of land and its resources, unless the Mizoram Legislative Assembly decides otherwise.

Mizoram’s governance model relies heavily on customary courts, which function alongside formal judicial systems to uphold traditional practices. While Article 371G ensures cultural preservation, it also faces challenges when customary practices come into conflict with central laws.

The Naga Accord and Its Implications

The Naga Accord serves as a critical backdrop to the discussions surrounding Article 371A. It reflects an ongoing effort to address Naga aspirations for greater autonomy and recognition of their identity. However, the Accord has exposed several unresolved issues:

1. Resource Management:

Article 371A grants Nagaland control over its land and resources, but disputes arise when these powers intersect with the Union List. For instance, in 2010, Nagaland passed a resolution to regulate petroleum and natural gas exploration independently. This move was invalidated by the Union government, citing its authority under Entry 53 of the Union List, which governs oilfields and mineral resources.

2. Customary Laws and Modern Principles:

While Article 371A recognizes Naga customary laws, their application often conflicts with central laws and constitutional principles. For example, Naga women’s inheritance rights, governed by customary practices, frequently clash with gender equality provisions enshrined in the Constitution. The Naga Accord has sought to preserve traditional practices, but reconciling them with modern governance remains a challenge.

3. Territorial Disputes:

The demand for a “Greater Nagalim,” encompassing Naga-inhabited areas across several northeastern states, has sparked tensions with neighboring states like Assam, Manipur, and Arunachal Pradesh. The Naga Accord’s emphasis on territorial integration has made governance in the region more contentious.

Lessons from the Sixth Schedule

In contrast to the complexities of Articles 371A and 371G, the Sixth Schedule provides a more structured framework for tribal governance. Enacted under Article 244(2), the Sixth Schedule establishes Autonomous District Councils (ADCs) in tribal areas in the state of Assam, Meghalaya, Mizoram and Tripura as defined under Para 20 of the Sixth Schedule, granting them significant legislative, executive, and judicial powers.

Key Features of Para 3

Under Para 3 of the Sixth Schedule, ADCs in Meghalaya are empowered to legislate on crucial subjects, including:

1. Land use and management,
2. Forests (excluding reserved forests),
3. Water resources for irrigation,
4. Regulation of shifting cultivation,
5. Appointment and succession of Chiefs or Headmen
6. Establishment of village councils and town committees and their powers,
7. Any matter related to village or town management and their powers  including village or town police and public health and sanitation,
8. Administration of justice according to customary laws,
9. Social customs.
10. Marriage and divorce

The Supreme Court ruling in Regional Provident Fund Commissioner vs. Shillong City Bus Syndicate (1995) affirmed the sanctity of ADC powers, declaring that central laws cannot override ADC legislation falling in the space occupied by Para 3. This judgment positions ADCs as autonomous entities capable of balancing tribal governance with constitutional principles.

Comparison: Article 371A/371G vs. Sixth Schedule

1. Broader Autonomy:

Articles 371A and 371G grant autonomy primarily at the state level, while the Sixth Schedule decentralises power through Autonomous District Councils, (ADCs) ensuring grassroots representation.

2. Clarity in Jurisdiction:

The Sixth Schedule clearly delineates ADC powers, reducing conflicts with state and Union governments. In contrast, Articles 371A and 371G often result in jurisdictional ambiguities, as evidenced by the Nagaland oil dispute.

3. Dispute Resolution in the Sixth Schedule

The Sixth Schedule incorporates mechanisms for resolving disputes between ADCs and state governments. These mechanisms are embedded in specific paragraphs of the Schedule, empowering ADCs to legislate, administer, and enforce their authority in tribal areas while providing oversight roles for state and central governments.

Key Provisions Relevant to Dispute Resolution

1. Para 3, 6, 8 and 10 – Legislative Authority

o       Para 6: Empowers the District Council to establish and manage public services such as schools, dispensaries, markets, cattle pounds, ferries, roads, road transport, and waterways, with the Governor’s prior approval for regulations.

o       Para 8: Grants the Regional and District Councils the authority to assess and collect land revenue, levy taxes on lands and buildings, and impose additional taxes within their jurisdictions, subject to the Governor’s assent for regulations.

o       Para 10: Allows the District Council to regulate money-lending and trading activities by non-tribals, including licensing, setting interest rates, account maintenance, and trading licenses, with the Governor’s assent required for regulations.

2. Para 4 and 5 – Administration of Justice

o       ADCs are empowered to constitute courts for the trial of disputes and cases involving tribals and alsocustomary laws and local practices.

o       Courts established by ADCs have jurisdiction over cases concerning tribal laws, property disputes, and inheritance issues within tribal areas.

3. The appellate authority for disputes lies with the High Court of the state under Para 4(4), ensuring a mechanism for oversight and legal recourse.
4. Para 12 and subsequent division of this Para for Meghalaya, Mizoram and Tripura– Role of the Governor and President

o       The Governor is granted overarching authority to supervise the functioning of ADCs and resolve disputes concerning their powers, ensuring coordination between the state and ADCs.

o       The Governor’s discretion in matters of oversight creates a channel for resolving conflicts without escalating to the judiciary, fostering smoother governance. In the case of Meghalaya the President is empowered to exercise discreation in the applications/modification of Acts of Parliament

o

5. Para 15 – Oversight by the Governor

o       The Governor has the authority to modify or annul regulations/resolutions made by ADCs if they are found to be inconsistent with the Constitution or detrimental to public interest.

o       The Governor’s power to intervene provides a mechanism to resolve disputes between ADCs and the state government while maintaining tribal autonomy.

Comparison with Articles 371A and 371G

1. Lack of Comparable Mechanisms

Articles 371A and 371G grant autonomy to state legislatures to decide whether central laws apply to specific areas, but they do not provide specific mechanisms for dispute resolution. This results in:

• Ambiguities in Jurisdiction:

o       In Nagaland, disputes over oil exploration (e.g., the 2010 oil dispute) illustrate the absence of a structured framework for resolving conflicts between state and Union powers.

o       In Mizoram, conflicts over forest management and land ownership are often prolonged due to the lack of oversight or intermediary roles.

2. Contrast with Sixth Schedule Mechanisms

• The Sixth Schedule, through Para 4 and Para 15, ensures disputes between ADCs and the state government are resolved either through judicial oversight via High Courts in appeal or by way of writ jurisdiction under  Article 226  or 227 of the Constitution or through the Governor’s intervention.
• Articles 371A and 371G rely on the state legislature’s resolutions, leaving limited recourse in cases of disputes, as seen in the prolonged conflict over Nagaland’s resource management.

Strengths of the Sixth Schedule’s Framework

1. Judicial Oversight via Para 4(3):

o       By allowing appeals to state High Courts, Para 4 ensures that ADC laws are subject to constitutional scrutiny, preventing misuse or arbitrary actions.

2. Governor as Constitutional Intermediary:

o       The Governor’s power under Para 12 and Para 15 provides a mechanism to balance tribal autonomy with state and national interests. For instance:

       The Governor may annul ADC laws that conflict with national interests, providing a safeguard against constitutional violations.

3. Clearly Defined Jurisdiction:

o       Subjects under Para 3, such as land, forests, and tribal customs, are clearly defined, reducing conflicts with state laws. This clarity ensures that ADCs operate within a constitutionally sanctioned framework.

Supreme Court Ruling: Regional Provident Fund Commissioner vs. Shillong City Bus Syndicate (1995)

The Supreme Court clarified in this case that Acts of Parliament apply proprio vigore (by their own force) in Sixth Schedule areas unless modified or exempted by the Governor or in the case of Meghalaya, the President. This judgment has key implications:

• Reinforcement of ADC Authority: The Court upheld the constitutional sanctity of ADCs’ legislative powers under Para 3, ensuring that their autonomy is respected.
• Role of the Governor: The ruling emphasised that the Governor/ President plays a pivotal role in determining the applicability of central laws, reinforcing the oversight mechanism as a dispute resolution tool.
• Balancing Autonomy and Integration: The Court highlighted that while ADCs enjoy significant autonomy; this autonomy operates within the framework of the Constitution, ensuring harmony with national laws.

4. Preservation vs. Integration: Lessons from Para 12A(b) in Meghalaya

While Articles 371A (Nagaland) and 371G (Mizoram) focus on preserving tribal cultural identity by granting autonomy over customary laws, resource management, and social practices, the Sixth Schedule provides a more structured and nuanced mechanism to balance preservation with integration. A key provision exemplifying this balance is Para 12A(b) of the Sixth Schedule, which governs the application of Acts of Parliament in Meghalaya’s tribal areas.

Application of Acts of Parliament Under Para 12A(b)

Under Para 12A(b), any Act of Parliament pertaining to subjects under the Sixth Schedule can only apply to tribal areas in Meghalaya if explicitly modified or exempted by the President of India through notification. If such a modification or exemption is not issued, the Act applies proprio vigore (by its own force).

This provision highlights two essential constitutional principles:

1. Safeguard Against Arbitrary Application: By requiring Presidential oversight, Para 12A(b) ensures that national laws are not automatically imposed on tribal areas. This acts as a safeguard against central laws that could disrupt tribal customs, traditions, or governance systems.
2. Selective Integration: When deemed appropriate, the President may allow Acts of Parliament to apply in tribal areas, ensuring that national policies are integrated only when they align with local needs and circumstances.

Supreme Court’s Interpretation: Regional Provident Fund Commissioner vs. Shillong City Bus Syndicate

In the landmark case of Regional Provident Fund Commissioner vs. Shillong City Bus Syndicate (1995), the Supreme Court provided clarity on the application of central laws in Sixth Schedule areas:

• The Court ruled that Acts of Parliament apply proprio vigore in Sixth Schedule areas unless explicitly modified or exempted by a Presidential notification.
• The judgment emphasised that ADCs and tribal areas are not entirely immune to central laws. Instead, they enjoy a constitutional mechanism that allows for modification or exemption to respect their unique socio-cultural and governance structures.

This interpretation underscores the principle that while the Sixth Schedule provides significant autonomy, it does not create an entirely separate legal regime. The integration of tribal areas into India’s legal framework remains subject to constitutional safeguards.

Apart from this ruling other key judgements of the Apex Court are as follows:

1. The Supreme Court’s judgment in T.N. Godavarman Thirumulpad vs. Union of India (1996) significantly impacted forest conservation across India, including the Autonomous District Councils (ADCs) in Meghalaya. While the 1997 ruling primarily addressed forest conservation, its implications extended to the governance and management of forest resources within the jurisdiction of the ADCs.

Role of ADCs in Meghalaya Post-Judgment:

1. Forest Conservation Oversight:

o       The judgment emphasized the need for prior approval from the Central Government for non-forest activities within forest areas. This directive necessitated that ADCs in Meghalaya ensure that any such activities within their territories complied with the Forest (Conservation) Act, 1980. ADCs were required to coordinate with state and central authorities to monitor and regulate activities affecting forest lands.

2. Regulation of Timber Industry:

o       The Court directed the closure of unauthorized sawmills, veneer mills, and plywood mills operating without proper licenses. In Meghalaya, ADCs were tasked with enforcing this directive within their regions, ensuring that timber industries operated legally and sustainably. This responsibility included verifying the legality of timber sources and the operation of wood-based industries.

3. Community Rights and Traditional Practices:

o       The judgment acknowledged the role of indigenous communities in forest conservation. ADCs in Meghalaya were expected to recognize and support traditional practices related to forest management, aligning with the Forest Rights Act, 2006, which grants rights to forest-dwelling communities. This involved facilitating the identification and vesting of rights over forest resources to local communities.

4. Collaboration with State and Central Authorities:

o       ADCs were required to collaborate with the state and central governments to implement the directives of the Supreme Court. This collaboration included participating in the identification of forest areas, monitoring of forest resources, and ensuring compliance with conservation laws. ADCs played a crucial role in bridging the gap between local communities and higher authorities.

5. Impact on Local Livelihoods:

o       The judgment’s directives, such as the ban on timber movement and the closure of unauthorised mills, had significant implications for local livelihoods in Meghalaya. ADCs were involved in addressing these challenges by promoting sustainable livelihoods and alternative income sources for communities dependent on forest resources. This included initiatives for community-based forest management and eco-tourism.

In summary, the Supreme Court’s ruling in the T.N. Godavarman case expanded the role of ADCs in Meghalaya, entrusting them with greater responsibility in forest conservation, regulation of forest-based industries, recognition of community rights, and collaboration with state and central authorities to ensure sustainable management of forest resources.

2. The Supreme Court of India’s Ruling

(C.A. No. 10720 of 2018, July 3, 2019)

Backdrop

Meghalaya’s practice of rat-hole coal mining had long inflicted serious environmental harm, particularly by polluting water sources and degrading soil. In an effort to contain the ongoing damage, the National Green Tribunal (NGT) imposed a ban in 2014 that halted all coal mining and transportation activities. Questions subsequently arose as to whether central laws applied in a landscape where most land and minerals are under private or community ownership, governed by unique tribal traditions.

Key Legal Issues

1. Applicability of Central Laws – The Court examined whether the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR), the Mines Act, 1952, and related environmental statutes extend to lands held under tribal or customary ownership in Meghalaya.
2. NGT’s Jurisdiction – It also assessed the legitimacy of the NGT’s comprehensive ban and its authority to form committees and environment restoration funds.
3. Ownership vs. Regulation – Finally, the Court clarified whether individuals or communities who lawfully own the sub-soil resources are still bound to procure mining leases, environmental clearances, and observe mine-safety regulations.

Court’s Main Findings

1. Central Statutes Apply – The Court declared that the MMDR Act, the Mines Act, and various environmental regulations do indeed apply to mining on both privately and communally owned land in Meghalaya. Since no Presidential notification under the Sixth Schedule exempts the State from these laws, they remain firmly in place.
2. Mandatory Approvals – All mining activities, irrespective of land ownership, must be conducted under valid leases and with appropriate environmental and safety clearances.
3. NGT Powers Upheld – The Court found the NGT’s ban on illegal coal mining to be legally sound and endorsed its creation of committees and environment restoration funds under the “Polluter Pays” principle.
4. Disposal of Coal – Coal already extracted but deemed illegally mined remains subject to the ban. However, the Court permitted Coal India Ltd. to auction or dispose of inventoried coal, ensuring the lawful owner’s rights are recognized, minus costs, taxes, and royalties.
5. Environmental Restoration – Meghalaya must commit resources, including an allocation of ₹100 crore, to remedy widespread ecological damage. The Court allowed the State to draw on its existing Environment Protection and Restoration Fund for these purposes.

Implications

1. Mining Lease & Compliance – Going forward, any coal mining in Meghalaya must adhere to procedural requirements such as obtaining leases, environmental clearances, and compliance with all relevant statutes.
2. Environmental Priority – The Court underscored that protecting the environment and promoting sustainable mining take precedence over traditional practices that result in ecological harm.
3. Balancing Interests – While tribal ownership of land and minerals is upheld, the judgment enforces the principle that national regulations on safety and sustainability cannot be bypassed.
4. No Overruling of Sixth Schedule or Para 12A(b) – Rather than negating these provisions, the Court clarified that, in the absence of a specific Presidential notification, central laws fully apply in Meghalaya

Overall Takeaway

• ADCs assume greater regulatory and enforcement roles for forests and natural resources, aligning local customs with national laws.
• Forest conservation and responsible mining trump traditional usage rights when ecological harm is evident.
• Any future mining or timber activity in Meghalaya must balance tribal rights, livelihood concerns, and compliance with central legislation, underscoring a sustainable, law-abiding approach to resource management.

Comparing Para 12A(b) to Articles 371A and 371G

The mechanism under Para 12A(b) differs significantly from the autonomy granted under Articles 371A and 371G:

1. Central Oversight vs. State Discretion:

o       Under Articles 371A and 371G, the application of central laws depends solely on the resolutions of the state legislatures of Nagaland and Mizoram. This leaves substantial discretion to state governments, which may lead to inconsistent integration with national governance. There are many grey areas which opens the scope for constitutional conflict.

o       In contrast, Para 12A(b) introduces a layer of Presidential oversight, balancing local autonomy with national integration.

2. Proprio Vigore Principle:

o       Articles 371A and 371G allow states to entirely reject central laws unless explicitly adopted, creating potential gaps in governance on critical national issues.

o       Para 12A(b) ensures that central laws apply automatically unless specifically exempted or modified, providing greater consistency in governance while respecting tribal autonomy.

3. Structured Integration:

o       Para 12A(b) fosters a structured approach to integration by involving the President, who considers the unique needs of tribal areas before granting exemptions or modifications. This ensures a more deliberate and thoughtful process for applying national laws.

Preservation and Integration: The Sixth Schedule’s Balanced Framework

Compared to Articles 371A and 371G, Para 12A(b) of the Sixth Schedule offers a more balanced and structured approach to preserving tribal identities while enabling integration with India’s constitutional framework. By placing the power with the President:

• Cultural Safeguards: It ensures that national laws do not override tribal traditions or disrupt customary governance indiscriminately.
• Selective National Integration: It provides a mechanism to integrate national policies that align with local needs and aspirations, fostering both preservation and progress.

The Supreme Court’s ruling in the Shillong City Bus Syndicate case reaffirms the sanctity of this framework, ensuring that while Acts of Parliament have force in Sixth Schedule areas, the constitutional mechanism of modification and exemption protects tribal autonomy.

Ultimately, Para 12A(b) serves as a model for balancing preservation of local identities with the broader constitutional objective of unity in diversity, demonstrating the Sixth Schedule’s effectiveness in fostering governance tailored to India’s unique tribal regions.

Conclusion

Articles 371A and 371G represent significant efforts to recognise and protect the distinct identities of Nagaland and Mizoram. However, their implementation has highlighted legal ambiguities and governance challenges, particularly in resource management, customary law enforcement, and their intersection with central laws. The Naga Accord further illustrates the complexities of addressing tribal autonomy while navigating territorial and constitutional conflicts.

In comparison, the Sixth Schedule offers a more coherent and decentralised model, empowering ADCs with legislative, executive, and judicial authority. Landmark rulings of the Supreme Court of India like the Shillong City Bus Syndicate case reaffirm the effectiveness of the Sixth Schedule in safeguarding tribal governance. For regions like Nagaland and Mizoram, strengthening such frameworks could provide a clearer and more equitable path to resolving conflicts while preserving cultural identities. In my continuing search for the realities of this constitutional situation my next articles will delve into 1.the problems faced by Nagaland and Mizoram in the implementation of Article 371 A and Article 371 G 2, The need to strengthen the Sixth Schedule in view of the pending 125th Amendment of the Constitution of India and the need for a State Chapter specific to matrilineal Meghalaya and 3. The demand for application of the Sixth Schedule to Ladakh.