Why demand for Article 371 has become a talking point in Meghalaya district council elections

As Meghalaya heads for elections to autonomous district councils, a debate has erupted over whether the state should be included under Article 371 of the Constitution – a provision that gives special protections to several states in the North East.

The newly formed Voice of the People Party or VPP, which is a strident advocate of the interests of the Khasi-Jaintia tribes, has stirred up the campaign with its demand.

Nearly all of Meghalaya is included under the Sixth Schedule of the Constitution, which gives autonomy to tribal communities in the northeastern states through the mechanism of autonomous district councils.

The VPP argues that it is not enough. “The Sixth Schedule grants a small degree of autonomy,” party spokesperson Batskhem Myrboh told Scroll. “It does not protect us from the laws passed by the central government.” He argued these laws often go against the state’s culture and traditional political institutions, or its system of land holdings.

In contrast, Article 371A and Article 371 G, as it is applicable in Nagaland and Mizoram respectively, “empowers the state Assembly to pass resolutions declaring that the central law will not be applicable”, Myrboh pointed out.

The three major players in the district council elections – the ruling National People’s Party, its ally the United Democratic Party and the Congress – have criticised the demand as impractical.

“It is nothing but political noise to attract the attention of the public,” WR Kharlukhi, the NPP Rajya Sabha MP, told Scroll.

Political observers have also connected it to mining interests – Article 371 provisions might enable the revival of the banned rat-hole coal mining in the state.

But the VPP’s increasingly popular nativist stand appears to be setting the terms of the political debate, observers told Scroll. “[It helps that] Article 371 is being thought of as a bulwark against the intrusion of the central government, and the Bharatiya Janata Party,” said Bhogtoram Mawroh, Shillong-based columnist and political commentator.

The Khasi Hills Autonomous District Council and Jaintia Hills Autonomous District Council, which are governed by the Sixth Schedule, go to polls on February 21.

The Sixth Schedule and Article 371

The Sixth Schedule provides for autonomous decentralised self-governance in certain tribal areas of Assam, Meghalaya, Mizoram and Tripura.

The councils are empowered to make laws on land, forest, inheritance, indigenous customs and traditions of tribals, and also to collect land revenues and certain other taxes.

Nagaland, Mizoram and parts of Manipur are entitled to protection under another provision of the Constitution – Article 371.

This allows for decentralised governance, with a certain degree of administrative autonomy, and dispute resolution through customary laws. Several of these laws also restrict land transfer to those defined as outsiders to the state concerned.

But not all states have similar protections.

“The Nagas enjoy the greatest powers, only lesser than [what Jammu and Kashmir had enjoyed under] Article 370,” said Thongkholal Haokip, who teaches law and governance at the New Delhi-based Jawaharlal Nehru University.

For instance, Article 371A states that no act of Parliament shall apply to Nagaland in respect of the religious or social practices of the Nagas, its customary law and procedure, and ownership and transfer of land and its resources unless approved by the state legislature.

Mizoram is protected by Article 371 G, which prohibits the imposition of central laws that are at odds with the “religious and social practices of Mizo customary law” without the state government’s approval. In Manipur, Article 371 C is limited to its hills, which are inhabited by Nagas, Kuki, Zomis and Hmars, and offers relatively less autonomy to its hill districts council.

The history of Sixth Schedule

Several states created in the North East after 1947 were largely hill districts in Assam province under the British colonial government.

The British cordoned off the districts from the commercially lucrative plains of Assam by the “Inner Line”, a bureaucratic barrier laid down by the Bengal Eastern Frontier Regulation Act, 1873. The hill districts, also called the excluded areas, were left largely to their own devices by the colonial administration.

After Independence, the Constituent Assembly had set up a sub-committee headed by Assamese leader Gopinath Bordoloi to decide on how the “excluded areas” inhabited by the hill tribes could be administered.

Many tribal leaders expressed their demands for separate states or at least distinct administrative units. The committee’s report, submitted in July 1947, formed the basis for the Sixth Schedule.

“The Khasi politician, James Joy Mohan Nichols Roy was, with Bordoloi, one of the main drafters of the Sixth Schedule,” said Jelle JP Wouters, social anthropologist and author of In the Shadows of Naga Insurgency: Tribes, State, and Violence in Northeast India. Accordingly, the Khasi, Jaintia and Garo Hills were brought under the Sixth Schedule.

However, Naga leaders, represented by the “Naga National Council, rejected the recommendations of the Bordoloi committee,” Wouters said. In 1951, the Naga National Council carried out a “national plebiscite”, in which 99.9% of Nagas reportedly voted to stay out of the Indian Union.

Eventually, the Indian state’s negotiations with leaders of an armed movement that advocated an independent Nagaland led to a different model of autonomy.

“Article 371A was enacted as an envisaged compromise that provided autonomy and self-rule beyond what the Sixth Schedule allowed for,” Wouters, who teaches in the Royal University of Bhutan, told Scroll. “It allowed a state like Nagaland tremendous autonomy, [making it] almost like a country within a country.”

The demand in Meghalaya

The demand for Article 371 has been raised sporadically over the years in Meghalaya by political parties and nativist civil society groups.

“The first political leader who spoke about the need to have Article 371 for Meghalaya was Hopingstone Lyngdoh, the chief of the Hill State Peoples’ Democratic Party, in 1977,” Myrboh, the VPP spokesperson said.

The call has been echoed by ethnocentric civil society groups like the powerful Khasi Students’ Union. In 2022, the KSU passed a resolution stating that Meghalaya needs to be included under Article 371 of the Constitutions in order to protect its tribal population

“The current demand is the reaction of the election,” Lambok S Marngar, who heads the Khasi Students Union, told Scroll. “But we have been demanding each and every constitutional safeguard for the people of Meghalaya.”

Ardent Miller Basaiawmoit, who heads VPP, argued that the Sixth Schedule limits the powers of the district council – as laws passed by the district council cannot supersede those passed by the state government. “Similarly, laws passed by the state government cannot supersede the laws passed by the central government. Therefore, there is danger for Meghalaya,” he said at an election campaign.

But several political leaders of the state, such as Cabinet minister Paul Lyngdoh, who once favoured implementing Article 371, have walked back on their demand.

Lyngdoh, a leader of United Democratic Party, which, like VPP, espouses the cause of Khasi nationalism, said that the application of Article 371 to a Sixth Schedule state would lead to “unnecessary confusion” as both are “mutually exclusive”. “Wherever Article 371 is in place, there are no autonomous district councils, and wherever there are ADCs, Article 371 does not apply,” he said.

He also claimed that the Sixth Schedule already acts as a buffer against central laws. Barring three wards, the whole of Meghalaya was exempted from the Citizenship (Amendment) Act, Lyngdoh said, because of the protective provisions of the Sixth Schedule.

The ruling National Peoples’ Party criticised the VPP for empty grandstanding. “The NPP has been fighting for the inclusion of our language in the Eighth Schedule,” WR Kharlukhi, the NPP Rajya Sabha MP said. “We passed a resolution in the assembly. It was not done. We want the Inner Line Permit and passed a resolution in the assembly. It was not done. People should introspect why. Because we don’t have strength in Parliament.”

In order to bring Meghalaya under Article 371, the Centre has to bring a constitutional amendment. He added: “Shouting and making promises in our state is very easy. But do you have the strength to go to Delhi?”

‘More protection’

Observers told Scroll that the VPP has started the debate, hoping to gain from the nativist sentiment that has so far propelled its rise – even though Articles 371A and 371G are not relevant to district council elections.

“The VPP is considered by a large section of the populace to be the only nativist party that has not betrayed the local communities,” said Mawroh, the Shillong-based columnist and political commentator.

The VPP won the Khasi-dominated Shillong Lok Sabha seat with over 50% vote share. Earlier, it had won four seats in the Assembly elections in 2023.

Mawroh added: “The party’s rise is based on Khasi victimhood and the perception that their rights have never been respected. It’s not true of course, but the paranoia is what has driven their success. Of course, the party also benefits from the lack of development and corruption.”

Patricia Mukhim, editor of The Shillong Times, was blunt. “People have never voted with reason, always with emotions and the more protection parties promise they will vote because they don't use their heads to think,” she said.

She pointed out that the inadequacies of the district councils have contributed to the demand. “The district councils are custodians of land, forests, rivers and waterways but they have failed to protect these ecosystems,” Mukhim said.

The mining ban

Significantly, VPP politicians have argued that Article 371 would allow the tribes greater control over the mining of minerals.

Party chief Ardent Miller Basaiawmoit recently claimed that in the absence of Article 371, the residents of Meghalaya have had to give up their traditional customs like hunting and mining. “Now if a snake comes to your home, you cannot kill it but you have to hand it over to the authorities concerned,” he said.

His party candidate Strong Pillar Kharjana pointed out that rat-hole mining continues in Nagaland despite a 2014 ban by the National Green Tribunal because of Article 371A.

Scholars like Duncan McDuie-Ra and Dolly Kikon have pointed out that tribal councils in Nagaland have often “bypassed” state policies on coal mining, as “part of their role in arbitrating land and natural resources as per customary law”.

For instance, eight months after the NGT ban, pressure from powerful organisations like the Konyak Students Union, and an alliance of landowners, traders, and traditional councils had decided to resume coal mining in Mon district.

In February 2024, Nagaland Chief Minister Neiphiu Rio had told the Assembly that Article 371A has been the major hurdle in the state government’s efforts to regulate small-scale illegal coal mining activities.

Mukhim expressed the fear that the debate over Article 371 was being used by the state’s politicians to legitimise coal mining.

A “mining lobby is ready to fund any political party” that will facilitate coal mining by overriding the National Green Tribunal, Mukhim said.

In 2019, at least 15 miners were buried while working in an illegal mine in Meghalaya after it was flooded by water from a nearby river.

“Now they want to allow coal mining by dragging in Article 371 but without any detailed plan for eco restoration,” she said. “This will further deplete forests and destroy our water systems. There has been no effort to reclaim abandoned mines. Two rivers in Jaintia Hills, the Lukha and Lunar, have become toxic due to acid mine drainage.”

A shift to the right

The VPP’s push for more constitutional protection appears to be pushing the state’s politics rightwards.

The United Democratic Party, which is also a part of the state government, has upped the ante on nativism. It has demanded that the few non-Sixth Schedule areas – three wards within the capital Shillong where non-tribal residents can buy land and carry out business without permission from the district council – should also be declared as tribal areas. “There’s a competition to show who is more aggressive,” said Mawroh.