SHILLONG | May 19, 2019:
The legal maxim, “ignorance of law excuses no one” (ignorantia legis neminem excusat) is a principle holding that a person would not escape liability for violating that law merely because he/she is unaware of its existence. The doctrine assumes that a law has been promulgated, and citizens are supposed to know, when it is published through recognized procedures. This implies that not only the lawyers, but every citizen in a State is assumed and expected to know or be aware of the existence of the law. Registered lawyers are persons authorized by law to take up the profession of advocating people in litigations in the court of law as an economic activity, a trade or a business. But the law requires that all should know the law, and none is excused for not knowing it. With this note, I present in this article my analysis of the disputed Para 12A of the Sixth Schedule to the Constitution of India for initiating further debate and discussion among the lawyers as well as among the general public alike.
The Para 12A of the Sixth Schedule takes its present form by the North Eastern Areas (Reorganization) Act, 1971 when Meghalaya became a full-fledged State. It is an outgrowth of Para 12, which as originally enacted, states that no Act of the Legislature of the State in respect of matters specified in Para 3 of the Sixth Schedule, on which the District Council or Regional Council may make laws, shall apply to any autonomous district or autonomous region unless the concerned district council or regional council, by public notification directs that such State legislation would be applicable to the autonomous district or autonomous region over which it has jurisdiction, subject to such exception or modification as it thinks fit. Hence, according to Para 12 of the Sixth Schedule, it is the prerogative of the District Council or Regional Council to decide whether the State laws with regards to matters specified in Para 3 of the Schedule shall be applicable or not within its territorial jurisdiction. Today, the original paragraph 12 is applicable only in the State of Assam.
Para 12A states that if any provision of a law made by the District Council in the State of Meghalaya with respect to any matter specified in sub-paragraph (1) of paragraph 3 of the Sixth Schedule, or if any provision of any regulation made by the District Council under paragraph 8 or paragraph 10 of the Schedule, is repugnant to any provision of a law made by the Legislature of the State of Meghalaya with respect to that matter, then, the law or regulation made by the District Council, whether made before or after the law made by the Legislature of the State of Meghalaya, shall, to the extent of repugnancy, be void and the law made by the Legislature of the State of Meghalaya shall prevail.
Analysis of the provisions of Para 12A shows that it does not speak of, “a Bill or a provision of a Bill passed by the District Council,” to be screened and rejected by the State Government, but it speaks of, “a provision of a law made by the District Council.” The provision relates to a law, which means a Bill that has been passed by the District Council, and assented by the Governor. A Bill that has been passed by the District Council but has not been assented by the Governor is not a law, but only a Bill which Para 12A is not concerned about. Moreover, Para 12A does not speak of the repugnancy of a provision of a law made by the District Council to the learned opinion of the District Council Affairs (DCA) Department or the State Law Department, but it speaks of the repugnancy of a provision of a law made by the District Council, to a provision of a law made by the State Legislature. Hence, a provision of a law made by the District Council shall be void only to the extent of its repugnancy to a provision of the State’s law.
Who has the constitutional mandate to judge the repugnancy of a provision of a law made by the District Council to a provision of a law made by the Legislature? Certainly it is a domain of the Judiciary (Meghalaya High Court) to judge the extent of repugnancy in particular litigations where the law of the District Council and the Law of the State legislature happen to be in contest. If I establish my claim over certain rights on the basis of a provision of a law made by the District Council, and another person stakes his claim over the same right in the Judiciary on the basis of a provision of a law made by the State Legislature, then the provision of the State law would prevail and the judges would decide the matter in favour of the other person in the instant case. But if no one is disputing my claim over those rights on the basis of a provision of a District Council’s law, then that provision of a District Council’s law is not repugnant to anything at all. That is the meaning of the phrase, “to the extent of repugnancy, be void.” The concept, “the law made by the Legislature of the State shall prevail”, does not imply that the law made by the District Council stands annulled or repealed lock stock and barrel.
Para12A does not authorize the DCA Department of the State Government with a veto power to reject wholesale the Bills passed by the District Council on mere supposed or perceived repugnancy. The matter in question is the repugnancy of a provision of a law to be decided in the Judiciary, and not the repugnancy of a Bill to be decided by the DCA Department of State Government. But what is happening in reality is that and the DCA Department on the advice of the State Law Department had rejected or kept pending many Bills duly passed by the District Council without giving the chance of testing repugnancy in the court of law.
The DCA Department is assuming the role of a guardian of Khasi customs and tradition, which is the constitutional mandate of the District Council. In 2013, the DCA Department rejected the “Khasi Hills District (Nomination and Election of the Syiem, Deputy Syiem and Headmen of Langrin Syiemship) (Third Amendment) Bill, 2013” on the supposed ground that the principal Act of the Langrin Syiemship, was intended to serve and protect the indigenous Khasis in Langrin Syiemship, and it was opined that the proposed amendment by the Khasi Hills Autonomous District Council (KHADC) to delete the phrase “both of whose parents are Khasi by birth who”, from Section 2(d) of the principal Act would have a disastrous effect to the indigenous Khasis of the Syiemship.
Who has the constitutional mandate to interpret and safeguard Khasi customs and traditions, the State Government or the District Council? This episode seems to suggest that the State Government is all out for the preservation of the customs and traditions of the indigenous people, while the District Council seems to lack that concern. But it may also indicate that the State Government is usurping the authority of interpreting and protecting the Khasi social customs which is the domain of the District Council according to paragraph 3 of the Sixth Schedule.
The spirit of Para 12A of the Sixth Schedule is not to circumscribe the legislative power of the District Council, but it is only to safeguard against infringement of fundamental human rights of the citizens, on grounds of the Sixth Schedule. Due to the play of party politics and personal interests, some laws had indeed been passed in the KHADC not for public interest, but just to serve the personal interest of someone in the power circle. On the other hand, for some other vested interests, Para 12A seems to have also been utilized by those in the State Government to reduce the status of an autonomous district council to that of a department of the State Government, and thereby, affected the autonomy of the District Council as the guardian of customs and traditions as well as the cultural identity of the indigenous community.
Citizens should come forward for meaningful intervention in this political tussle. The people are in need of socio-economic development and civic welfare, as well as safeguard of human rights in a democratic social order. The proper domain of the State Government is with the maintenance of the social order in the legal context; and in socio-economic development and civic welfare of the citizens. On the other hand, indigenous people also feel the need for preserving territorial and cultural identity. The proper domain of the District Council is with conservation of tradition, and guidance to the evolution of customs, and the maintenance of social order in the cultural context. The State Government should have nothing to do with the nomination and election of the Syiem of Hima Langrin, and the District Council should have nothing to do with the construction of multi-story buildings, metalled roads, or the management of urban waste and sanitation which are not elements of Khasi customs and traditions.