Joint Report Of The Excluded And Partially Excluded Areas (Other Than Assam) And The North-East Frontier (Assam) Tribal And Excluded Areas Sub-Committee25 August 1947
The Joint Report was prepared by the two sub-committees dealing with Excluded and Partially Excluded Areas, as per the suggestion of the Chairman of their parent Advisory Committee. The Report was submitted by the two Chairmen, Gopinath Bordoloi and A.V. Thakkar, on 25 August 1947.
The Report highlighted the differences between the tribes of the Assam Hill Districts and the North Eastern Frontier Tracts, with those of the other regions. It outlined the extra special provisions which were required for the former, as well as the overall protections applicable to all Excluded and Partially Excluded Areas.
The suggestions of this Joint Report and other Reports by the two sub-committees were incorporated in the Draft Constitution 1948, and were placed before the Constituent Assembly along with the Draft Constitution on 4 November 1948. They found a place in the final version of the Constitution in the 5th and 6th Schedules.
1. In Provinces other than Assam, with the exception of the Laccadive Islands of Madras and the Spiti and Lahaul area of the Punjab, there are no excluded areas. In both of these excluded areas the population is not ethnically tribal. In the Laccadive Islands the islanders are Muslims of the same stock as the Moppillahs of Malabar. In Minicoy they are believed to be of Sinhalese origin. In Spiti and Lahaul the inhabitants are of Tibetan origin. In the remaining partially excluded areas of Provinces other than Assam the principal tribes to be found are Santhal, Gond, Bhil, Munda, Oraon, Kondh, Ho and Savara, Many minor tribes like Korku, Pardhan, Kol, Bhumij, Warli also inhabit the areas. The total population (*Including Assam, the total population of the tribes in the Provinces is 15.9 million) of all the tribes, excluding Assam, is about 13 million of which approximately 8 million inhabit the partially excluded areas. With the exception of certain small tribes like the Bonda Porja and the Kutia Kondh of Orissa, all the remaining tribes have experienced varying degrees of sophistication and come into contact with people of the plains and advanced tracts. Although the tribals living in the non-excluded areas are often hard to distinguish from the plains people among whom they live, they are generally in a backward condition which is sometimes worse than the condition of the Scheduled Castes. It is not possible therefore to leave them out of consideration on the ground that only the tribes in the partially excluded areas need attention. All the tribes of Provinces other than Assam, whether living in the plains or in the partially excluded tracts, should, as one whole be treated as a minority. As regards Assam, conditions in the hill districts of which the Naga Hills, the Lushai Hills and the North Cachar Hills have been excluded are on a totally different footing and the atmosphere, particularly in these excluded areas, is one which is not to be found elsewhere. These areas must therefore be treated separately from the rest. As regards plains tribals the total number of whom, excluding Sylhet, comes to approximately 1.5 million according to census figures, about seven lakhs are tea-garden labour from various parts of the country [not included in the Schedule B to the Government of India (Legislative Assemblies Order) 1936] are not to be taken into account as tribes of Assam. The tribal population of the excluded and partially excluded areas comes to about 8 lakhs. In Assam there are in addition the frontier tracts and tribal areas in which conditions of settled administration prevail only to a very small extent and large areas cannot be said to be under regular administration at all. Even now, in the northern frontier tracts, Tibetan tax-collectors make inroads and, in the Naga tribal area, head-hunting goes on. The administration of these areas still involves contact with foreign States and problems of defence.
2. The areas inhabited by the tribes, whether in Assam or elsewhere, are difficult of access, highly malarial and infested also in some cases by other diseases like yaws and venereal disease and lacking in such civilizing facilities as roads, schools, dispensaries and water supply. The tribes themselves are for the most part extremely simple people who can be and are exploited with case by plainsfolk resulting in the passage of land formerly cultivated by them to money-lenders and other erstwhile non-agriculturists. While a good number of superstitions and even harmful practices are prevalent among them the tribes have their own customs and way of life with institutions like tribal and village panchayats or councils which are very effective in smoothing village administration. The sudden disruption of the tribals customs and ways by exposure to the impact of a more complicated and sophisticated manner of life is capable of doing great harm. Considering past experience and the strong temptation to take advantage of the tribals’ simplicity and weaknesses it is essential to provide statutory safeguards for the protection of the land which is the mainstay of the aboriginal’s economic life and for his customs: and institutions which, apart from being his own, contain elements of value. In making provisions however allowance could be made for the fact that in the non-excluded areas the the tribals have assimilated themselves in considerable degree to the life of the people with whom they live and the special provisions concerning legislation in particular are therefore proposed largely for the Scheduled Areas in Provinces other than Assam: (Report, paras 10 and 11) and the autonomous districts [(Assam) Para 13 of Report and Section A of Appendix A).
3. Although in the case of the autonomous districts of Assam a distinction has been made the proposals in the main contemplate that tribals should be treated as a minority in the matter of representation in the Legislatures and recruitment to the various services of the Central and Provincial Governments. In the case of the tribals of Provinces other than Assam reserved representation in the Provincial and Federal Legislatures (House of the People) in proportion to the total tribal population of the Province is recommended by joint electorate. In the case of Assam similar reservation of representation for the plains tribals (excluding tea-garden labour) is recommended. In the case of the hill districts, in view of their small and exclusive populations it is recommended that representation should be provided in proportion to the population but in such a way that all fractions of a lakh are. taken as one lakh even though this might involve a small weightage. In the Federal Legislature (House of the People) the autonomous hill districts should have a representative. The plains tribals should have representation in the House of the People also on the basis of their population. In all cases election by adult franchise is recommended and indirect election or nomination should not be resorted to. There should be special representation as follows:
Lahaul & Spiti…1.
[Para, 9 of Interim Report of Other Than Assam Sub-Committee and para. 21 of Assam Sub-Committee Report; see also para, 6 of Joint Report.]
Non-tribals will not be eligible for elections from hill constituencies to the Provincial Legislature except the constituency which includes the municipality of Shillong. [Para. 21(e) and Sec. K(8) of Appendix A of Assam Report]. Constituencies may not be so made as to extend outside the boundaries of autonomous districts [Para. 21(d) and Sec. K(3) of Appendix A, Assam Report].
4. There should be a department under the Federal Government in order to supervise and watch the development of the tribals in the different Provinces and to furnish such advice and guidance as may be needed [Para. 5 of Final Report of Other Than Assam Sub-Committee].
5. The areas inhabited by the tribes are hilly and difficult country, to develop which is likely to be beyond the resources of some Provincial Governments. The Federation should therefore provide the necessary funds for the execution of approved schemes of development. [Para. 17 of Interim Report and Secs. I & K(2) of Appendix C of Other Than Assam Sub-Committee, also para. 14(c) and Sec. N of Appendix A of Assam Sub-Committee Report]. In the case of Assam, the Federation should also meet the average deficit of the autonomous districts during the three years preceding the commencement of the Constitution [Para. 14(c) and Sec. N of A of Assam Report].
6. The Central Government should also be in a position to require the Provincial Governments to draw up and execute schemes for the Scheduled Areas [Para, 17 of Interim Report and Sec. I & K(2) of Appendix C of Other Than Assam Sub-Committee).
7. The Federal Government should institute a special commission after ten years to enquire into the progress of the Scheduled Areas and the tribes [Para, 16 and Sec. K(1) of Appendix C of Other Than Assam Sub-Committee Report].
8. In Provinces other than Assam, excepting the U.P. and the Punjab a Tribes Advisory Council containing, to the extent of three-fourths of its membership, elected members of the Provincial Legislatures is recommended. The Council shall have not less than ten or more than twenty-five members [Para. 15 and Sec. J of Appendix C of Other Than Assam Sub-Committee Report]. For U. P. and the Punjab an advisory committee containing representatives of the tribal or backward class concerned to the extent of two-thirds is recommended [Paras, 3 and 4 of Final Report; see also Para. 19 of this Summary for details of U. P. committee]. For Assam there is provision for the Governor to appoint either a permanent or an ad hoc commission to report or keep the Government in touch with the administration of the autonomous districts [Para. 24 and Sec. O(1) of Appendix A of Assam Sub-Committee Report].
9. The hill districts of Assam are to be designated as autonomous districts and special district councils should be set up for each of them. The district councils will have powers of legislation over (a) occupation or use of land other than land comprising reserved forest, (b) the management of forest other than reserved forest, (c) the use of canals and water courses for the purposes of agriculture, (d) control of jhum cultivation, (e) establishment of village and town committees and (f) village management in general. Reserved forests will be managed by the Provincial Govern- Iment [Paras. 9 to 13 of Assam Sub-Committee Report].
The district council will have powers of management of all institutions which normally come under the scope of local self-government in the plains and will have full control over primary education [Para. 13 and Sec. E of Appendix A of Assam Sub-Committee Report].
The district council will also have powers to make its own rules and regulations regarding its own constitution [Sec. B(5) of Appendix A of Assam Sub-Committee Report].
The district council will have powers to make laws affecting (a) appointment and succession of chiefs, (b) inheritance of property, etc. [Para. 18 and Sec. C of Appendix A of Assam Sub-Committee Report].
District councils and regional councils can set up courts with full powers to deal with all civil suits other than those arising out of special laws and offences punishable under the Penal Code with imprisonment of less than five years in accordance with local or tribal custom except where non-tribals are involved [Para. 12 and Sec. D & F of Appendix A of Assam Sub-Committee Report].
Where there are different tribes in a district and they wish to manage their own affairs regional councils may be set up. Regional councils have powers limited to their customary law and the management of land, villages and courts. Regional councils may delegate their powers to district councils. [Para. 18 and Sec. B(3) of Appendix A of Assam Sub-Committee Report].
The district and regional councils (Assam Hill Districts) will have powers to levy land revenue, house tax or poll tax and other taxes levied by local self-governing institutions in the plains [para. 14(a) and Sec. H of Appendix A of Assam Sub-Committee Report]. They should be assisted by Provincial grants where necessary [Para. 14(d) of Assam Report].
The District or Sub-divisional Officer, as the case may be, will be ex-officio President of the district council of the Mikir and North Cachar Hills.
10. The district council shall be an elected body with not less than 20 or more than 40 members of whom not less than three-fourths shall be elected by universal adult franchise. Separate constituencies to be formed for separate tribes, with a population of not less than 500. Non-tribal residents of autonomous districts, if their population is not below 500, may be formed into a separate constituency for election to the ditrict council [Para. 27 and Sec. B(1) and (2) of Appendix A of Assam Report].
11. In matters relating to land (Provinces other than Assam), social customs and village management, if the Tribes Advisory Council advises that any law passed by the Provincial Legislature should not be applied to a Scheduled Area the Provincial Government shall direct accordingly. The Provincial Government shall have powers to direct that any other legislation shall not apply to the Scheduled Areas on the advice of the councils [Paras. 9 and 10 and Sec. E of Appendix C of Other Than Assam Sub-Committee Report].
In the case of Assam legislation on these matters is left to the district council and Provincial laws will not apply unless the district council applies them with or without modifications. Legislation prohibiting the consumption of non-distilled liquors will also not apply unless the district council applies it [Para. 17 and Sec. L of Appendix A of Assam Sub-Committee Report].
12. If the Tribes Advisory Council so advises, moneylenders in Scheduled Areas should not be permitted to carry on business except under licence [Para. 26 and Sec. G of Appendix C of Other Than Assam Sub-Committee Interim Report].
In Assam the district council should have powers to take action to license moneylenders and non-tribal traders if the rules are approved by a majority of three-fourths of their members; this is to prevent the practice of these professions by non-tribals in a manner detrimental to the interests of tribals [Para. 15 and Sec. J of Appendix A of Assam Sub-Committee Report].
13. Allotment of waste land in a Scheduled Area should not be made to except in accordance with rules made by the Provincial Government in consultation with the Tribes Advisory Council [Para. 25 and Sec. F of Appendix C of Other Than Assam Sub-Committee Report].
14. Mineral resources in the autonomous districts of Assam will be managed by the Provincial Government but the district councils will be entitled to a share of the revenue. Licences or leases shall not be given out except in consultation with the district council [Para. 16 and Sec. I of Appendix A of Assam Report].
15. The Governor of Assam should be empowered to set aside any act or resolution of a district council if the safety of the country is prejudiced; he should also have powers to dissolve a council if gross mismanagement is reported by the commission [Para. 19 and Sec. Q and R of Appendix A of Assam Sub-Committee Report].
In Provinces other than Assam the Governor should have the special responsibility to see that schemes of development are drawn up and implemented. This should be enjoined on him by instructions [Para. 19 of Other Than Assam Report].
16. The Central Government should continue to administer the frontier tracts and tribal area with the Government of Assam as its agent until administration has been satisfactorily established over a sufficiently wide area. Areas over which administration has been satisfactorily established may be taken over with the approval of the Federal Government [Sec. P of Appendix A and Para. 20(a) of Assam Sub-Committee Report].
Provincial Governments (other than Assam) should have powers to make special regulations for the trial of petty criminal and civil cases in Scheduled Areas, with a view to simplify procedure [Sec. M of Appendix C of Other Than Assam Report].
17. The estimated revenue and expenditure pertaining to a Scheduled Area or an autonomous district should be shown separately in the provincial budget [Para. 18 and Sec. H of Appendix C of Other Than Assam Sub-Committee Report and Para. 14(b) and Sec. M of Appendix A of Assam Sub-Committee Report].
18. There shall be a separate Minister for tribal welfare in the C. P., Orissa and Bihar [Para. 20 and Sec. L of Appendix C of Other Than Assam Sub-Committee Report). In Assam representation for the hill people in the Ministry should be guaranteed by statutory provision if possible or at least by a suitable instruction in the Instrument of Instructions (Para, 22; see also Sec. O(3) of Appendix A of Assam Sub-Committee Report].
19. For the partially excluded areas of the U. P. an advisory committee consisting of tribals or backward people to the extent of two-thirds of its membership, provision to prevent the transfer of land from the aboriginals to non-aboriginals (except with special permission), for regulations for the trial of petty civil and criminal cases by simple procedure, are recommended. The revenue and expenditure of the area should be shown separately in the provincial budget and there should he a seat reserved in the Provincial Assembly for a tribal from the partially excluded area of the Mirzapur District. There should also be provision for the Federal Government to call for reports from the Provincial Government regarding the administration of the areas.
Parallel provisions are recommended for Spiti & Lahoul (E. Punjab) which should have one seat in the Provincial Legislature [Paras, 3 and 4 of Final Report of Other Than Assam Sub-Committee).
20. Tribal panchayats should be encouraged wherever possible [Para. 22 of Interim Report of Other Than Assam Sub-Committee]. Shifting cultivation should be discouraged [Para. 23 of Interim Report of Other Than Assam Sub-Committee and Para. 11 of Assam Sub-Committee Report]. Temperance propaganda should be carried on as part of tribal welfare work [Para. 24 of Other Than Assam Sub-Committee Report].
21. Tribals should be recruited in due proportion to all Government services. Non-tribals posted to tribal areas should be selected with care [Para. 23 of Assam Report and Para. 21 of Other Than Assam Report).
Special attention should be paid to the recruitment of tribes to the Armed Forces of India [Para. 6 of Final Report of Other Than Assam Sub-Committee].
22. The abolition of the powers of Supurdars (Dudhi area of Mirzapur District, U. P.) to accept surrender and make a reallotment of land is recommended. The system of Sayanas in Jaunsar-Bawar (U. P.) should be abolished and revenue collected through officials.
23. A general review of the powers and functions of ancient systems of village or tribal headmen should be undertaken with a view to removing the grievances of tribals and the abolition of oppressive powers and general reform [Para. 7 of Final Report of Other Than Assam Sub-Committee).
24. Provincial Governments should utilize the services of approved non-official organizations doing welfare work among the tribals, with a view to adding to the volume of development work, by giving them grants-in-aid [Para. 8 of Final Report of Other Than Assam Sub-Committee].
25. It should be made compulsory for officials posted to aboriginal tracts to obtain a working knowledge of the local language within a reasonable period.
26. Posa payments to the frontier tribes should be continued [Para, 20(c) of Assam Sub-Committee Report].
The pace of extending administration in the frontier tracts should be greatly accelerated and additional officers appointed where necessary [Para, 20(a) of Assam Sub-Committee Report].
The Provincial Government should undertake an examination of the position in the frontier tracts with a view to taking a decision whether any portion could be taken immediately by it under Provincial administration [Para. 20(b) of Assam Sub-Committee Report].
Note: The contents of Appendix A of the Assam Report and of Appendix C of the Interim Report of Other Than Assam Sub-Committee must be studied for a full picture of the constitutional provisions recommended.