The Constitution of India provided for special powers to certain regions to decide upon their local governance, according to their traditions and culture. The Constitution created two such categories through Article 234 under the Fifth and Sixth Schedules: Scheduled Areas and Tribal Areas respectively. These two categories were created to safeguard the culture and traditions of tribal people in India by allowing greater autonomy in their administration, compared to non-Schedule areas. National and state laws are vetted by the governor of the state before they are applied in those areas, so that any legislative change does not come in conflict with the local mores. But there are differences within the two categories themselves. 

Fifth Schedule: “Scheduled Areas”
Special legislation required for legality of municipal governance

Both the 73rd and 74th CAAs state that they are not applicable in these areas without special legislation being passed. Tribal Areas have constitutionally mandated autonomous councils to govern the areas, but Scheduled Areas do not have similar governing bodies mandated. In 1995, the Bhuria Committee recommended that two bills be brought into effect to bring decentralised governance to the Scheduled Areas:  Municipal Extension to Scheduled Areas (MESA) Bill for urban areas and Panchayat Extension to Scheduled Areas (PESA) Bill for rural areas. These bills sought to provide safeguards to the tribal inhabitants against exploitation. 

While PESA was passed in 1996 and panchayats have been formed under it, MESA still has not been passed. Yet, municipal governments have been formed in Scheduled areas. The conflict that municipal governance faces in Scheduled Areas is because of this lack of legislative protections.

There is a great variance in how municipal governance is carried out in practise in these areas. At present, municipalities have been set up in areas under the Fifth Schedule, though the legality of the same has been challenged. According to one calculation from 2015, the seven states of Madhya Pradesh, Gujarat, Chhattisgarh, Maharashtra, Jharkhand, Odisha, and Rajasthan alone have 181 such ‘illegal civic bodies’. According to tribal rights activists, the absence of MESA means that when areas are converted from rural to urban governance systems, they are likely to be exploited. Municipal governance allegedly becomes a way of side stepping the protections under PESA. The conflict continues because even when these concerns are raised, they do not result in satisfactory answers.

In the 2007 Debashish Soren vs. State of Jharkhand case, the high court stated that the extension of municipal rule to the scheduled areas of the Ranchi district was valid. This was because the Bihar Municipal Act 1922, which the Jharkhand government initially adopted, predated the 74th CAA which excluded municipal governance from scheduled areas. Similarly, in 2013, the Supreme Court dismissed a petition by the Sundargarh Zilla Adivasi Advocate Association asking for the abolishment of four municipalities established in the district. The apex court said that the petition was factually lacking. 

Sixth schedule: “Tribal Areas”
Parallel systems of governance

The tribal dominated areas under the Sixth Schedule have relatively more autonomous powers. This allows for the establishment of parallel systems of governance, which may be in opposition to the municipal system, or might subdue them. In Meghalaya for example, there is a great resistance towards municipal governance, which is not seen as a legitimate replacement for the traditional dorbar system. Even in Shillong municipal area, which is not under the Sixth Schedule, 74th CAA mandated decentralised urban governance isn’t active. The last civic election took place in 1966, and in the absence of councillors, the informal village councils take care of civic administration in tandem with the municipal board.

In neighbouring Assam, we see a situation where in absence of legislations like MESA, municipal governance has decreased autonomy. The municipalities under the three Autonomous District Councils (ADCs) are administered according to rules made by the respective Councils. Elections are held for the municipalities in Karbi Anglong Autonomous Council, which has also established ‘adhoc Town Committees’. In Bodoland Territorial Council, the municipalities had elected members and Bodoland Municipal Rules, 2009 was created to introduce elections at the municipal level, which are yet to be approved by the Governor.

Can Indigenous Traditions and Urban Governance be reconciled?

Urbanisation is inevitable and is taking place in tribal dominated areas as well. Urban areas need governance systems which are geared towards their particular needs. This includes decentralised provision of services such as solid waste management, water supply, and urban planning. At the same time, the culture in these areas need to be preserved and any governance system needs to be sensitive towards this. 

MESA is required for this very purpose. It can constitutionally bring municipal governance to the Scheduled Areas and help inhabitants gain more control over their own governance. This in turn can dispel the distrust for city governments. MESA or a similar legislation might ease the situation in the Tribal Areas too. In the case of the ADCs in Assam, we can already see how the two systems can co-exist. A legal mechanism like MESA will increase the autonomy of the municipal bodies in such arrangements. 

Any such legislation, however, should benefit from the experience of the PESA. In Schedule Areas where PESA has been implemented, Gram Sabhas were envisaged as the central institution. Decisions within the Scheduled areas were to be directed to Gram Sabhas for consultation or approval. However, their role within the Panchayati Raj system has been ‘dysfunctional’ and hence the objectives of PESA have not been met adequately. The local governance at ward levels in cities has been equally dysfunctional. Hence, any act that intends to balance the indigenous rights and democratic self-governance needs to also balance the indigenous governance structures and those that were conceptualised as part of 74th Amendment. 

Thumbnail image: “Adivasi women dancing, India” by Simon Williams / Ekta Parishad is licensed under CC BY 3.0