Analysis: Ladakh’s Sixth Schedule demand

Once Ladakh was declared a Union Territory (UT) on 5 August, 2019, its governance came directly under Government of India. Earlier, when Ladakh was a part of the J&K state dominion, it barely received any importance or exposure to understand the meaning of good governance. As a result, the UT of Ladakh was not really prepared to take over the burden of governance on its own and required the support and assistance of Government of India. Many would argue that this was the reason why the UT of Ladakh was not granted a state legislature. Even if one does agree with this argument, one cannot deny that a time will come when the UT of Ladakh would need a Legislative Assembly.

Many sections of Ladakhi society have embraced the decision of Government of India to declare it a UT after abrogating Article 370. However, the journey does not end here as there is mutual responsibility for Ladakh and Government of India to improve coordination, enhance development, and deliver good governance.

Today, the people of Ladakh need safeguards to protect their culture and environment. The people of Ladakh, especially in Leh district, have time and again requested Government of India to invoke constitutional provisions to protect this unique region. The relevant laws governing such safeguards are already prescribed in our constitution along with the manner of its execution. There is thus no need for any new legislature in this regard. The Constitution of India lays down clear conditions under which a region can be considered for these provisions. This includes preservation of cultural identity and environmental heritage.

More than 98% of the residents of Ladakh belong to a constitutionally recognised tribal group, which is one prerequisite for the purpose of invoking the safeguards. Ladakh does have a distinct culture deeply intertwined with its delicate environment. In this context, recognition under the Sixth Schedule of the Indian Constitution is the most practical approach to safeguard Ladakh’s culture and environment.

Ladakh has Ladakh Autonomous Hill Development Councils (LAHDC) in Leh and Kargil. These need to be reformed and empowered to make them at par with the Autonomous Development Councils (ADCs) under the provision of the Sixth Schedule. The ADCs/LAHDCs under Sixth Schedule will function independently, without the need for a separate state legislature, with the approval from the Governor/Lieutenant-Governor.

Moreover, under the provision of the Sixth Schedule, the empowered LAHDCs will not only have executive function but also enjoy legislative, civil and judicial powers. They will be able to enact laws on matters such as land, forests, fisheries, and social security with due approval from the Governor/Lieutenant-Governor.

Critical analysis of current frameworks suggests that governance in Ladakh can function more effectively within the ambit of Sixth schedule with support and assistance from Government of India even in the absence of a Legislative Assembly. The LAHDCs are much closer to their constituents and are more acutely aware of the needs of the people and their interests. The Hill Councils are also better acquainted with the vulnerabilities of the environment. Thus, a more empowered version of LAHDCS along the lines of ADCs will be able to work more efficiently to safeguard the welfare of the region. Finally, the current structure of governance where Ladakh is divided into two districts, blocks and then villages blends effortlessly with the provisions of the Sixth Schedule.

One alternative to invoking the Sixth Schedule is to bring Ladakh under Article 371, which grants special provisions to states, but this is not practically feasible for various reasons. For instance, Article 371 (A-J) specifies provisions for specific regions. This implies that Government of India will have to enact additional categories to specify suitable provisions for Ladakh as it cannot club it with any of the existing categories currently mentioned in Article 371 (A-J). Furthermore, the provisions of Article 371 are so peculiar to their respective regions that none of them would be suitable for Ladakh due to the unique characteristics of the region. In addition, all the states under the provision of Article 371 have their own state legislature, which Ladakh currently lacks. For instance, Article 371C covers the creation of a committee for the functioning of the Legislative Assembly with members elected from the hilly regions of the state (Manipur). This section would not be applicable to Ladakh under the current framework as it does not have a Legislative Assembly or a corresponding institutionalised legislative framework as the LAHDCs currently function only as an executive branch of governance. Thus, Article 371 does not provide Ladakh with the safeguards that it requires.

Another option that has been mentioned in these discussions recently is the one related to domicile law. The term ‘domicile’ refers to being a lawful and permanent resident in a particular jurisdiction. A domicile certificate is a document that allows a person to avail various benefits such as education facilities, jobs etc. through a resident quota in government institutions. Domicile status is not only acquired by birth but also by choice. The right to change one’s domicile by choice is done by residing in the place of choice with the intention of residing there indefinitely.

So would a domicile law provide Ladakh safeguards comparable to the ones available under the Sixth Schedule? In this context we need to consider several important points. The first point refers to the fact that one naturally acquires domicile of the region where one is born in accordance with the Constitution of India under its provisions for citizenship. However, when a domicile law is being formulated there is no guarantee that it will reflect the expectations of the natives of a region. In other words, the fate of the natives will depend on these rules and regulations, which are also subject to change without warning or consultation. In addition, Government of India can always make a separate law enabling aspiring non-natives to gain domicile status in a particular region with certain riders.

Thus, in the current framework the safeguards Ladakh requires can only be achieved under the Sixth Schedule of the Constitution of India. The Sixth Schedule is perhaps the most relevant provisions in the Constitution to safeguard identity while also enabling the functioning of tribal regions. This helps us understand why there has been a strident demand from certain sections of Ladakhi society to bring the region under the ambit of the Sixth Schedule.

Text by Hina Goney

Photograph by Tsering Stobdan

Hina Goney holds a Bachelor of Law (LLB) degree and is based in Leh.

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