Ladakh's Real Choice: Which Constitutional Instrument Controls the Land Question

THE LAND CLAUSE IS THE WHOLE NEGOTIATION

Ladakh is not choosing between autonomy and no autonomy. It is choosing between two constitutional instruments that place power in different hands. The Sixth Schedule, working through Article 244(2), gives elected district councils law-making power over land, forests and customary practice.

The proposed Article 371-K, to be inserted in Part XXI, would create a directly elected legislative body. What the Centre has not yet said is which subjects that body will actually control.

What each instrument gives The Sixth Schedule pushes power downward to district councils of up to 30 members.

The Governor creates these districts by public notification and grants flow to them under Article 275(1). Its strength is simple: land sits with a local elected body. Its weakness is textual. The Schedule was written for tribal areas inside States and it is built around a State Governor.

A Union Territory has no Governor, only an Administrator acting for the President under Article 239. Placing Ladakh under the Schedule is not expressly forbidden. The Constitution simply never contemplated it, which makes this a silence rather than a prohibition.

That silence is what gives the Centre room to say no. Article 371-K would draw on the Article 371 family and that family contains a far stronger tool than most readers realise:

• Article 371A (Nagaland) says no Act of Parliament on Naga customary law or on the ownership and transfer of land and its resources, applies to the State unless its Legislative Assembly passes a resolution accepting it.
• Article 371G gives Mizoram the same shield. This is a veto held by an elected legislature and it is stronger than anything the Sixth Schedule offers, because district councils cannot block central law. The Article 371 route could therefore give Ladakh more land protection than the Sixth Schedule would, but only if 371-K contains a clause of this kind. There is one further novelty: every existing Article 371 provision applies to a State. Article 371-K would be the first written for a Union Territory.

The

Delhi warning The closest precedent for an elected body inside a Union Territory is Article 239AA, inserted by the 69th Amendment in 1991. It gave Delhi an elected Assembly, but clause (3)(a) removed three subjects from its reach: public order, police and land.

The Centre keeps those, acting through the Lieutenant Governor. If Article 371-K copies the 239AA design instead of the 371A design, Ladakh gets a legislature that cannot decide the very question that started the agitation.

The Leh shopkeeper would have an elected representative and the land decision would still be made in Delhi. Two other gaps make this worse:

• The Lieutenant Governor's role after the new body is created has not been defined. Delhi shows that an undefined line between an LG and an elected government ends up being drawn by the courts, not by the Constitution.
• Fiscal powers remain unsettled. A legislature that cannot raise or allocate its own revenue will depend on the Union Budget, whatever its formal powers say.