Article 371C of the Constitution: The role of the President, Governor and HAC
- Part 2 -

K Timothy Zimik *

All that the Assembly has to do is to pass a resolution declaring a matter to be included in the Scheduled matter which shall come within the purview of the HAC. If the HAC so desires to include any matter as a Scheduled matter, then they should come to the Manipur Assembly for this purpose. No new Bill is required. However, this power given to the Assembly has never been exercised.

Sadly, the HAC has not used this powerful weapon to include any other items in the list of Scheduled matters.

(7) The Chairman of the HAC is chosen by the Chief Minister and he is, therefore obligated to the CM who can remove him any time at will. As per the Constitutional schemes, the Chairman is to play a pivotal role for the effective functioning of the HAC, but no protection is provided to him under Article 371C thereby rendering his position weak and vulnerable. Unfortunately, the Presidential Order of 1972 does not define the Constitutional position, the fixed-term and the specific role of the HAC Chairman.

(8) A basic knowledge of Article 371C is required on the part of the law makers in order to apply the said provisions correctly and legally. The HAC is entrusted to exercise its power and functions over the 13 Scheduled matters. As stated above, the right of the HAC to consider and pass resolutions recommending to the Government of the State any legislation or executive action affecting the Hill Areas is restricted to the Scheduled matters.

(9) The HAC's attempt to pass the ADC Bill 2021 ended in fiasco. Claiming to be empowered by the Manipur Legislative Assembly (Hill Areas Committee) Order, 1972 of the President and invoking paragraphs 4(3) and 7 (please see the Chairman's covering letter introducing the ADC Bill, 2021 and its salient features), the HAC prepared `The Manipur (Hill Areas) Autonomous District Councils Bill, 2021' and submitted its recommendation with the demand to table in the Manipur Legislative Assembly and pass the same as an Act.

This new ADC Bill 2021 seeks to repeal and replace the existing Manipur (HILL Areas) District Council Act, 1971.

This new ADC Bill 2021 demands to achieve the following:
(1) more autonomy to the HAC and the District Councils,
(2) the creation of Autonomous Districts
(3) the creation of Hill Areas Secretariat, etc.

The new ADC Bill 2021 is a combined Bill for HAC and the ADC. These facts indicate that the fresh matters raised in this new Bill 2021 are not covered by the 13 Scheduled matters and therefore, they are not within the purview of the Hill Areas Committee.

(10) In other words, the legal position is that, since the HAC has invoked paragraphs 4(3) and 7 of the President's Order, the HAC is not competent to make the above recommendations to the Government of the State as its powers and functions are restricted to the 13 Scheduled matters.

The HAC and the District Councils are two separate authorities. The existing Constitutional provisions show that the matters relating to the HAC and the District Councils are to be dealt separately. The HAC can always prepare a comprehensive ADC Bill without invoking any section of the Presidential Order and submit to the President who may send it to the Parliament or to the Government of the State to do the needful.

(11) In the ADC Bill 2021, there is no financial autonomy because the required budget allocations for the HAC and the ADCs are not provided. When it comes financial autonomy and separate budget of the HAC and ADCs, the authors of this Bill 2021 should have given proper attention to this aspect. To demonstrate this point, let us see the proposed budget in the new ADC Bill 2021.

(12) Paragraph 45 of the new ADC Bill 2021 deals with the Budget. A careful examination of the Budget of the new ADC Bill 2021 does not indicate how much funds are actually made available for the HAC and the ADCs. To have a proper Budget allocatiOn, the HAC must know the exact sources of the funds.

According to Paragraph 45(7) of the ADC Bill 2021, funds may be allocated by the Union of India under any scheme, or by the State Government of Manipur or any other authority or body. The HAC is not very sure which authority will actually provide the required funds.

If the HAC and Autonomous District Councils are to be autonomous bodies in intent and reality as the name suggests, then the first thing to do is to clearly state the sources of funds. The next important thing is to decide the required amount of funds to be allocated to the HAC and ADCs. There is a mismatch between the estimated Budget made by the HAC and the sources of funds.

The picture that emerges from the new Bill 2021 is that the HAC and ADCs are completely at the mercy of the State Government which will decide the allocation of funds to the HAC and ADCs as per the State's own sweet will and wishes. The Central Government may not allocate any fund to the HAC and ADCs.

This is so because the new ADC Bill 2021 is to be enacted by the Assembly of the State of Manipur and not by the Parliament of India. This is going to be an Act of the State. This being the case, the funds will be allocated to the HAC and new ADCs by the State Government of Manipur. Their fate is sealed.

(13) In the case of the Government of Manipur, the estimated annual budget of Rs, 35,022 crore was ascertained and the same was presented by the Chief Minister of Manipur in February, 2023 for the Financial year 2023-24. The budget Rs. 35,022 crore was allocated to different departments and sectors by the Government of Manipur.

(14) The exact amounts to be allocated to the HAC and ADCs must be determined and the same must be included and allocated in the annual budget of the Government of the State. This is the basic requirement for the HAC and ADCs to exist as autonomous bodies If no clear fmancial autonomy arrangements are made for the HAC and ADCs in the annual budget of the Government of the State, then the ADC Bill 2021 is useless. The existing Manipur (Hill Areas) District Councils Act, 1971 is defunct mainly because of this very reason - absence of financial autonomy.

The Role of the Union of India

15. The executive power of the Union shall extend to the giving of directions to the State as to the administration of the Hill Areas. This means that the Central Government also has the power to issue directions to the State Government for securing proper administration of the said areas.

But there is no report available in the public domain to indicate that, in exercise of its power, the Central Government has taken any pro-active step or has issued directions to the State for proper administration of the Hill Areas.

Conclusion

16. Under Article 371C, the President, the Governor, HAC, and the Union of India are mandated to provide effective administration to protect the interests of the Hill Areas in key areas-socio-economic, cultural identity, land ownership and political autonomy.

The President must issue one more order to provide, inter alia :
(i) making the HAC and its Chainnan independent.
(ii) HAC's recommendation binding,
(iii) creation of autonomous districts and separate budget for Hill Areas.
(iv) defining the Governor's discretionary power very clear.
(v) creation of independent HAC Secretariat.
(vi) granting more autonomy to the HAC.
(vii) the Governor to act on the advice of the HAC on legislative matters.

The Governor to submit a detailed report as to why the special provisions of Article 371C and Presidential Order of 1972 are non-functional since its inception.


(Concluded)

The views expressed in this article are his personal views.