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PETITIONER: EDWINGSON BAREH

       Vs.

RESPONDENT: STATE OF ASSAM AND OTHERS

DATE OF JUDGMENT: 29/11/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. RAMASWAMI, V. SATYANARAYANARAJU, P.

CITATION:  1966 AIR 1220            1966 SCR  (2) 770

ACT:      Constitution  of India, 1950, VI Schedule,  Para  1(3)- Scope  of  Governor’s  power-If  Parliamentary   legislation necessary to make changes effective.

HEADNOTE:       On  26th January 1950, the United Khasi-Jaintia  Hills District  was  formed as one of the Tribal Areas  of  Assam. The area along with other Tribal Areas mentioned in Parts  A and  B  of the Table appended to paragraph 20 of  the  Sixth Schedule to the Constitution, are governed by the provisions prescribed  by that Schedule.  Under Paragraph 2(4)  of  the Schedule, the  administration  of the  United  Khasi-Jaintia Hills District vested in the District Council inaugurated on 27th June 1952. The appellant was elected as Chief Executive Member of the District Council in March 1963, and by various notifications  the  term of the District  Council  has  been extended  up  to  2nd May 1965.  On 26th  August  1963,  the Governor  of  Assam appointed a Commission  under  paragraph 14(1) to examine and report on the creation of a new autono- mous  district for the people of Jowai sub-division and  for excluding  it from the United Khasi-Jaintia Hills  District. The  Commission  made  its  report  for  such  creation  and exclusion  on 20th January 1964.  The Council  of  Ministers considered    the   ’report,   decided   to    accept    the recommendation,   drew  up  an  explanatory  memorandum   as required  by  paragraph 14(2) of the Schedule and  sent  the entire  file to the Governor who noted on it "seen  thanks". The  Minister  in  charge,  then  laid  the  report  of  the Commission and the explanatory memorandum, stating that  the Government  had decided to accept the recommendation of  the Governor  on  the  report,  before  the  Assembly,  and  the Assembly passed a resolution approving the action  proposed. On 23rd November 1964, the Governor issued a Notification by which  the  new  autonomous district  was  created  and  was "eluded  from the United Khasi-Jaintia Hills  District  with effect from 1st December 1964.  The appellant challenged the Notification  by a petition for the issue of a writ  in  the High Court., which was dismissed.

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    In  appeal to this Court, it was contended that  :  (i) Paragraph  1(3)  of the Schedule does not  confer  upon  the Governor  power to constitute a new autonomous district  and that  it  could be done only  by  Parliamentary  legislation under  Paragraph 21 of the Schedule under which  powers  are granted  to Parliament to amend the Schedule and even if  be had the Dower, the Governor’s decision must be confirmed  by Parliamentary  legislation;  and (ii) the  Notification  was invalid because the mandatory provisions of paragraph 14 bad not been complied with.      HELD   (Per  Chief  Justice,  Wanchoo,  Ramaswami   and Satyanarayana Raju, JJ.):(i) When paragraph 1(3)(c) provides that the Governor may, by public notification, create a  new autonomous  districts;  it does not  contemplate,  that  the Constitution   requires  something  more  to  be   done   by Parliament,  in  order to make the  notification  effective. [782 A] 771     Paragraph 1(3) confers on the Governor power to issue  a notification  for the purposes of bringing about any of  the results  enumerated  by cls. (a) to (g)  of  the  paragraph. Clause  (c) refers to the power of Governor to create a  new autonomous district; cl. (e) refers to the power to diminish the area of any autonomous district, and cl. (g) refers  to the  power  to  define  the  boundaries  of  any  autonomous district.  The proviso to the paragraph imposes a  condition on  the exercise of the powers conferred by cls. (c) to  (f) by  requiring the Governor before exercising the  powers  to appoint  a  Commission under Paragraph 14(1)  to  report  on those matters and then to consider its report Paragraph 1(3) indicates  that  the  Constitution  has  delegated  to   the Governor a part of the power conferred on Parliament  itself by paragraph 21.  If the Governor has been clothed with  the relevant power, the exercise of the power must by itself, be effective to bring about the results intended by cis. (c) to (i) of paragraph 1(3).  The power must be exercised  subject to  The condition prescribed by the proviso, but once it  is properly exercised it becomes effective and there is no need for parliamentary legislation in that behalf. [780 H; 781 A- B, C-D; 782 B, C-D]      The two Acts, namely Act 18 of 1954 and Act 42 of 1957, one  for renaming a District and the other for excluding  an item from Part A and including it in Part B, do not show any legislative  practice  requiring  parliamentary  legislation with  respect  to the matters covered by  the  Notification. [782 G; 783 D]      It  is not necessary that for an effective exercise  of his  power by the Governor there should be  confirmation  by Parliamentary legislation, because, the power of  Parliament under  paragraph 21 is very wide and includes the  power  to take  away  the Governor’s power, and in the  very  unlikely event  of the Governor attempting to challenge the  decision of Parliament in respect of any of the matters mentioned  in Paragraph   1(3),  Parliament  can  take  away   his   power altogether by suitable legislation.[783 F]      The modification made by the impugned Notification does not  affect the contents of paragraph 20(1),  because,  even after  the  Notification the paragraph truly  and  correctly provides  that the areas specified in Parts A and B  of  the table  shall  be tribal areas within the  State.   What  the Notification purports to do is to change one item into  two. Since  the  power  to bring about the  change  is  expressly conferred  on the Governor by paragraph 1(3)(c) to (g),  the exercise  of  that  power, which leads  to  a  consequential change in paragraph 20(2) which just gives a description  of

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the  areas,  does not require Parliamentary  legislation  to make  the  change  effective.  Therefore, it  would  not  be reasonable  to hold that without  Parliamentary  legislation the  impugned Notification cannot validly effect any  change in  item 1 of Part A of the table appended to paragraph  20. [784 C-E, H; 786 B, C]      (ii) The  power conferred on the Governor by  paragraph 1(3) had been validly and properly exercised by him.       One  of the conditions prescribed by paragraph  14  is that  the Governor should consider the report  submitted  by the  Commission and make his recommendations.  Even if  the Governor  was  expected  to  apply  his  mind  and  make   a recommendation.,  he  is not precluded  from  receiving  the assistance  of the Council of Ministers before he  makes  up his  mind,  and  on  the record it must  be  held  that  the Commission recommended that a new autonomous district should be   created   and  that  the  Governor  agreed   with   the recommendation. [789 F; 790 B]      Though the Commission appointed under paragraph 14 used the   words   "District   Council"   on   considering    its recommendations as a whole 772 there is no doubt that what it recommended was the  creation of a new autonomous district. [787 F-G]       Per Hidayatullah, J. (dissenting) : No action could be effective without Parliamentary legislation under  Paragraph 21  to  amend the operative portion of  paragraph  20  which Parliament alone can amend, Further, the Governor, far  from playing  the  key  role  which  the  policy  underlying  the Schedule   envisages,   left  the  entire  matter   to   the Government.      (i)  When  the final step is taken to divide  a  tribal area  it  amends the Sixth Schedule.   Paragraph  1(3)  says nothing  about  the  amendment  of  paragraph  20,  and  the Governor  has no power under cls. (c), (d) and (e) to  amend the paragraph or the Table appended to it.  A power to amend paragraph  20  and an amendment of the.  paragraph  and  the table  cannot  be implied, in view of  paragraph  21,  under which  powers  are  granted  to  Parliament  to  amend   the Schedule.   Even if it is not an amendment for  purposes  of Art. 368, the amendment cannot be such a simple affair that a  Notification  of the Governor amends  the  provisions  by implication.  If the Notification alone did that there would be  antinomy  between  the Notification  and  the  Schedule. Paragraph  20  and the Table will remain unaltered  and  the Notification  will  render  them  obsolete.   Therefore,  to complete  the  chain of steps the power under  paragraph  21 must  be exercised to alter the autonomous  districts..  the names  and areas of which are laid down by Parliament.   The Governor’s Notification is one of the means of achieving the change but effectiveness can only be given by Parliament  as it  was done on previous occasions when Act 18 of  1954  and Act 42 of 1957 were passed.  There is no material as to what the practice or procedure was that was followed when changes were  made  in  the tribal areas, except  that  on  previous occasions  Parliamentary  legislation  was  undertaken,  and while it is not conclusive, it is a circumstance which  also points in the direction that Parliamentary legislation  must cap  all other steps if the Schedule is to read true to  the new situation. [803 C,F-H; 804 F-H; 813 FIH]      (ii) The  history  of  these backward  tracts  and  the scheme  of  ’he  Sixth Schedule show that  the  Governor  is intended    to   discharge   special   functions   in    the administration of the tribal areas in Assam in which a start in  democratic  institution is being made.  In  the  present

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case  the Governor was very much in the background  and  the information  and  formation  of opinion  was  by  the  State Government.  He was only informed after everything was over. [810 F; 813 E]       The functions of the Governor are not made subject  to the scrutiny of the Government of Assam, and the Union  also has  not been given the power to give directions as  to  the administration of these autonomous districts.  The  Governor is expected to act independently and not with the advice  of Ministers.  Should difference arise between them the  legis- lature  would  decide.   Under  paragraph  14(2)  there   is provision  for  the appointment of Commissions  for  various purposes  mentioned in that paragraph and paragraph 16.   As regards the changes in autonomous districts contemplated  by paragraph  1(3)(c)  to (f), if the State  Government  agreed with  the  Governor there would be no need to  explain  what action  the  Government was going to take; it  has  only  to implement  the  decision administratively and  the  Governor would  notify  the  changer.. The need  for  an  explanatory memorandum arises if the Governor’s recommendations are  not accepted  by the State Government.  Apart from this  control by the Legislature in specified matters, there is nothing to ,show  that in addition the District and Regional  Councils, which  are  autonomous  in  almost  every  way,  are  to  be controlled by the Council of 773 Ministers through the Governor.  The Governor’s note  hardly squared  with the special responsibilities  contemplated  by the Schedule. [805 D-E; 810 G; 811 B, D-G; 812 A, F]     Even  in the Commission’s recommendation there was  some confusion, though it may be conceded that when reference was made to a council, an autonomous district was meant. [813 D]

JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 968  of 1965.      Appeal  from the judgment and order dated  February  5, 1965 of the Assam and Nagaland High Court in Civil Rule  No. 286 of 1964.       M.  C.   Setalvad,  and  D.  N.  Mukherjee,  for   the appellant.       C.  K. Dapthary, Attorney-General, and Naunit Lal, for the respondents.       The   Judgment  of  GAJENDRAGADKAR,   C.J.,   WANCHOO, RAMASWAMI  AND  RAJU, JJ. was delivered  by  GAJENDRAGADKAR, C.J. HIDAYATULLAH, J. delivered a dissenting Opinion.       Gajendragadkar,  C.J. The appellant, Edwingson  Bareh, belongs to the village of Barato in Jowai area of the United Khasi-Jaintia  Hills  District in Assam.  He is  an  elector from  the  said  area to the District Council  of  the  said United  Khasi-Jaintia  Hills  District.   In  fact,  he  was elected  as  a  member to the  said  District  Council  from Nongjngi  Constituency  (No. 23).   This  constituency  fell within  the  Jowai area of the said  District.   Later,  the appellant  was  elected  as Chief Executive  Member  of  the District  Council in March, 1963.  By virtue of his  office, he  draws  a monthly salary and other allowances  under  the provisions  of  the  United  Khasi-Jaintia  Hills   District Council Chairman’s, Deputy Chairman’s and Executive Member’s Salaries  and Allowances Act, 1953.  He is entitled to  hold the  said office till a new District Council is elected  and takes over.      On  the 26th January, 1950, when the Constitution  came

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into  force,  the United Khasi-Jaintia  Hills  District  was formed as one of the Tribal Areas of Assam, and in this area were  merged  the Khasi States with the other areas  of  the Khasi-Jaintia  Hills.   The  boundaries  of  this  area  are defined  by  paragraph 20(2) of the Sixth  Schedule  to  the Constitution.  All the Tribal Areas mentioned in Part A  and Part  B of the Table appended to paragraph 20 of  the  Sixth Schedule  are governed by the provisions prescribed  by  the Sixth Schedule.      Under   paragraph  2(4)  of  the  said  Schedule,   the administration,  of the United Khasi-Jaintia Hills  District vested in the District 774 Council which was inaugurated on the 27th June, 1952.   This Council consists of 24 different constituencies out of which 6  are in the Jaintia Hills area.  The District Council  has been  clothed with administrative, legislative and  judicial powers  over the territory of the District by  the  relevant provisions  of  the  Sixth Schedule.   By  the  notification issued on the 1st of June, 1964, No. TAD/R/8/62, the term of the  present  District Council was extended up  to  the  2nd January,. 1965, or until the newly elected District  Council takes   over.   By  a  subsequent  notification  issued   in December,  1964,  No.  TAD/R/8/62, the period  of  the  said ,Council was further extended from 3rd January, 1965 to  the 2nd May, 1965.  Under the present administration set up, the Executive  Committee  of the District  Council  consists  of three  members including the Chief Executive Member and  two other  members, and all the executive functions of the  said Council are vested in the Executive Committee.      Purporting  to act on certain representations  received by  him, the Governor of Assam appointed a Commission  under paragraph  14(1) of the Sixth Schedule on the  26th  August, 1963.   This Commission was required "to examine and  report in the matter of, (1) creation of a new autonomous  District for  the people of Jowai Sub-Division of the  United  Khasi- Jaintia Hills Autonomous District, and (2) exclusion of  the area   from  the  United  Khasi-Jaintia   Hills   Autonomous District."  The  Commission  made its  report  on  the  20th January,  1964  and  recommended  the  creation  of  a   new autonomous  District Council for the Jowai  Sub-Division  of the  United  Khasi-Jaintia  Hills  Autonomous  District   by excluding  the  areas comprising the area of the  said  Sub- Division  from  the United  Khasi-Jaintia  Hills  Autonomous District."      Thereafter, the Minister-in-charge of the Tribal  Areas and Welfare of Backward Classes Department of the Government of  Assam laid before the Assam Legislative Assembly  during its autumn session of 1964 the report of the Commission with an explanatory memorandum made on the 25th September,  1964. This  memorandum stated that the Government had  decided  to accept  the recommendation of the Governor on the  said  re- port and give effect to it.      After the report was thus placed before the Legislative Assembly, the Assembly passed a resolution approving of  the action  proposed to be taken by the Government of  Assam  on the  report  in  question.  On the 23rd  November,  1964,  a notification  No.  TAD/R/50/64 (hereinafter referred  to  as ’the Notifica- 775 tion’)  was  issued by the Governor of Assam  in  accordance with  the  memorandum  which  had  been  placed  before  the Legislative  Assembly of Assam.  By this  notification,  the Governor  of Assam was pleased "to create a  new  Autonomous District  to be called the Jowai District by  excluding  the

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Jowai   Sub-Division  of  the  United  Khasi-Jaintia   Hills District  with effect from 1st December, 1964; and that  the boundaries of the Jowai District shall be the boundaries  of the  Jowai  Sub-Division of the United  Khasi-Jaintia  Hills District."      The appellant challenged the constitutional validity of this notification by filing a writ petition before the  High Court of Assam and Nagaland on the 30th November, 1964.   In his   writ   petition,  the  appellant  alleged   that   the notification  was invalid and ultra vires the powers of  the Governor.   Alternatively, it was urged that  in  exercising his  powers,  the  Governor has  contravened  the  mandatory requirements  prescribed  by  paragraph  14  of  the   Sixth Schedule to the Constitution.  The appellant’s case was that even  if it was assumed that the Governor had the  power  to issue  the impugned notification, inasmuch as the  mandatory provisions  of paragraph 14 had not been complied with,  the notification  was invalid.  To this petition, the  appellant impleaded  five respondents; the first amongst them was  the State of Assam; the others were : the Minister-in-charge  of Tribal Areas and Welfare of Backward Classes Department; the Secretary  to the Government of Assam, T.A., O.B.  &  W.B.C. Department; the Chief Secretary to the Government of  Assam; and the Deputy Secretary to the Government of Assam,  Tribal Areas & Backward Classes Department, respectively.       The   respondents   disputed  the  validity   of   the contentions  raised by the appellant in his  writ  petition. They  urged  that the notification had been  issued  by  the Governor  in  exercise  of the powers conferred  on  him  by paragraph  1(3)  of  the Sixth Schedule  and  that  all  the relevant requirements of paragraph 14 had been complied with The  respondents  did  not accept  the  correctness  of  the appellant’s  argument that in issuing the notification,  the Governor had acted outside his authority.       Since  the  point  raised  by  the  petition  was   of considerable importance, and related to the construction  of the relevant provisions contained in the Sixth Schedule, the writ petition was placed for hearing before a special  Bench of the Assam High Court consisting of three learned  Judges. After  the  writ petition was argued, the High Court,  by  a majority  decision, has rejected the contentions  raised  by the appellant and has dismissed the writ Sup.CI/66-3 776 petition filed by him.  The minority judgment has upheld the arguments  of the appellant and has held that  the  impugned notification  is  invalid.  After the decision of  the  High Court was pronounced, the appellant applied for and obtained a certificate under Art. 132 of the Constitution, and it  is with the said certificate that he has come to this Court  in the present appeal.       On  behalf of the appellant, Mr. Setalvad argues  that paragraph 1(3) of the Sixth Schedule does not confer on  the Governor the power to constitute a new autonomous  district. For  the  valid  creation  of  a  new  autonomous  district, parliamentary legislation is necessary.  In support of  this plea,  Mr.  Setalvad  has relied en  what  he  describes  as "legislative practice" in that behalf.  He further  contends that  even  if  the Governor had the  power  to  create  new autonomous  district under paragraph 1(3), the  exercise  of that  power can be effective only after Parliament passes  a law  in  accordance with the decision of the  Governor.   In other  words,  the  argument is that the  Governor  may,  by virtue  of  his  power, decide to create  a  new  autonomous district  under  paragraph  1(3), but the  decision  of  the Governor  must  be confirmed  by  parliamentary  legislation

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before  it  becomes  effective.   In  the  alternative,  Mr. Setalvad contends that even if the Governor can  effectively create  a  new autonomous district by virtue of  his  powers under paragraph 1(3), he can do so only after complying with the  mandatory provisions of paragraph 14; and  since  these provisions  have  not  been  complied  with,  the   impugned notification is invalid.       Before   dealing  with  these  points,  it  would   be convenient  to  refer  broadly to the scheme  of  the  Sixth Schedule  which contains the provisions in relation  to  the administration  of  tribal areas in Assam.   Article  244(2) provides  that  the provisions of the Sixth  Schedule  shall apply to the administration of the tribal areas in the State of Assam; and that means that tribal areas in Assam would be governed  not  by  the  other  relevant  provisions  of  the Constitution which apply to the other constituent States  of the  Union of India, but by the provisions contained in  the Sixth  Schedule.  These provisions purport to provide for  a selfcontained  code for the governance of the  tribal  areas forming  part of Assam and they deal with all  the  relevant topics  in  that behalf.  The areas described in  the  table appended  to paragraph 20 of the Sixth Schedule,  consisting of Part A and Part B, constitute the tribal areas within the State  of Assam; sub-paragraph (1) of the said paragraph  so provides.   Sub-paragraphs  (2),  (2A),  (2B)  and  (3)   of paragraph 20 describe the boundaries of the 777 items  mentioned  in  the  Table.   Part  A  of  the   table originally  consisted of six items; the first  amongst  them was  the United Khasi-Jaintia Hills District.  The  item  of ’The  Naga Hills-District’ which was originally included  in Part  A  has been subsequently taken out of Part A  and  has been  added to Part B. Part B which originally consisted  of only one item, now consists of two items; the first item  is North  East  Frontier Tract including other  Tracts  therein described; and the second is the ’Naga Hills-Tuensang Area’. Thus, paragraph 20 read with the Table gives a comprehensive description of the tribal areas falling within the State  of Assam  for  whose administration provision is  made  by  the other paragraphs of the Sixth Schedule.      Paragraph 1 of the Sixth Schedule deals with autonomous districts   and  autonomous  regions  and  confers   certain specified  powers on the Governor.  It is necessary to  read this paragraph      "1.  (1) Subject to the provisions of  this  paragraph, the  tribal  areas  in  each item of Part  A  of  the  table appended  to  paragraph  20 of this  Schedule  shall  be  an autonomous district.       (2) If  there  are different Scheduled  Tribes  in  an autonomous  district,  the  Governor may,  by  public  noti- fication,  divide the area or areas inhabited by  them  into autonomous regions.       (3) The Governor may, by public notification:-       (a) include any area in Part A of the said table,       (b) exclude any area from Part A of the said table,       (c) create a new autonomous district,       (d) increase the area of any autonomous district,       (e) diminish the area of any autonomous district,       (f) unite  two or more autonomous districts  or  parts thereof so as to form one autonomous district,       (g) define the boundaries of any autonomous district :        Provided that no order shall be made by the  Governor under  clauses  (c),  (d), (e) & (f)  of  this  subparagraph except  after  consideration of the report of  a  Commission appointed  under sub-paragraph (1) of paragraph 14  of  this

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Schedule." 778 Then follow several paragraphs dealing with the constitution of District Councils and Regional Councils; their powers  to make  laws;  the  administration of  justice  in  autonomous districts and autonomous regions; conferment of powers under the Code of Civil Procedure, 1908, and the Code of  Criminal Procedure,  1898, on the Regional and District Councils  and on  certain  courts and officers for the  trial  of  certain suits,  cases and offences; these are covered by  paragraphs 2,  3,  4 and 5 respectively.  Paragraph 6  deals  with  the powers of the District Council to establish Primary Schools, etc.   Paragraph  7  deals with the  District  and  Regional Funds;  paragraph 8 refers to powers to assess  and  collect land  revenue and to impose taxes.  Para. 9 has relation  to licences  or leases for the purpose of prospecting  for,  or extraction  of, minerals.  Para. 10 confers on the  District Council power to make regulations for the control of  money- lending and trading by nontribals.  Paragraphs 11 & 12  deal with  the  publication of laws, rules and  regulations  made under   the  Schedule;  and  the  application  of  Acts   of Parliament and of the Legislature of the State to autonomous districts and autonomous regions respectively.  Paragraph 13 is  concerned  with the question of estimated  receipts  and expenditure pertaining to autonomous districts which have to be  shown  separately  in the  annual  financial  statement. Paragraph  14  is  concerned  with  the  appointment  of   a Commission and for the purpose of the present appeal, it  is necessary to read it :               "(1)  The Governor may at any time  appoint  a               Commission to examine and report on any matter               specified    by    him   relating    to    the               administration of the autonomous districts and               autonomous  regions  in the  State,  including               matters specified in clauses (c), (d), (e) and               (f)  of  sub-paragraph (3) of paragraph  1  of               this  Schedule or may appoint a Commission  to               inquire  into and report from time to time  on               the administration of autonomous districts and               autonomous regions in the State generally  and               in particular on-                     (a)  the  provision of  educational  and               medical facilities and communications in  such               districts and regions;                     (b)  the  need  for any new  or  special               legislation in respect    of  such   districts               and regions; and                     (c)  the  administration  of  the  laws,               rules and regulations made by the District and               Regional Councils; and define the procedure to               be followed by such Commission. 779 .lm15      (2)  The  report  of  every such  Commission  with  the recommendations  of the Governor with respect thereto  shall be laid before the Legislature of the State by the  Minister concerned together with an explanatory memorandum  regarding the action proposed to be taken thereon by the Government of Assam.      (3)  In  allocating the business of the  Government  of the State among his Ministers the Governor may place one  of his  Ministers  specially in charge of the  welfare  of  the autonomous districts and autonomous regions in the State." Paragraph 15 deals with the annulment or suspension of  acts and   resolutions  of  District  and’   Regional   Councils.

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Paragraph  16 deals with the dissolution of a District or  a Regional  Council;  paragraph  17  is  concerned  with   the exclusion  of  areas from autonomous  districts  in  forming constituencies in such districts.  Paragraph 18 is concerned with  the application of the provisions of this Schedule  to areas specified in Part B of the table appended to paragraph 20;   while  paragraph  19  deals  with   the   transitional provisions.  Paragraph 21 which is the last paragraph in the Sixth Schedule, is relevant for our purpose; it reads thus:-                    "(1) Parliament may from time to time  by               law  amend  by way of addition,  variation  or               repeal any of the provisions of this  Schedule               and,  when  the Schedule is  so  amended,  any               reference    to   this   Schedule   in    this               Constitution shall be construed as a reference               to such Schedule as so amended.                     (2)  No such law as is mentioned in sub-               paragraph (1)of this paragraph shall be deemed               to  be an amendment of this  Constitution  for               the purposes of Article 368." That,  broadly  stated,  is the  scheme  of  the  provisions contained in the Sixth Schedule.       It  is plain that under paragraph 21,  Parliament  can make a law amending by way of addition, variation or  repeal any of the provisions of the Sixth Schedule and when such an amendment  is made, reference to the Sixth Schedule  in  the Constitution shall naturally be construed as a reference  to such Schedule as so amended.  In other words, Parliament  is clothed with legislative competence of the widest  amplitude in  relation to any changes it likes to make in any  of  the provisions contained in the Sixth Schedule.  Paragraph 21(2) has provided that any changes 780 sought  to be introduced by parliamentary legislation  under the  power  conferred  on Parliament  by  sub-paragraph  (1) thereof shall not be deemed to amount to an amendment of the Constitution  for the purposes of Art. 368.  There can  thus be no doubt that if Parliament wants to make any changes  in any  provisions of the Sixth Schedule, it is entitled to  do so; and that obviously means that the change which has  been introduced  by the impugned notification might as well  have been  made by Parliament.  The question which calls for  our decision  is : can the same change be validly introduced  by the  Governor in exercise of the powers conferred on him  by paragraph 1(3) or not ?      We have already noticed that the effect of paragraph 20 read  with  the  table  appended to it  is  that  the  areas specified  in Part A and Part B of the said table amount  to tribal areas within the State of Assam.  Now, paragraph 1(1) of the Sixth Schedule provides that the tribal areas in each item of Part A of the table .appended to paragraph 20  shall be  an  autonomous district, subject to  the  provisions  of paragraph  1. This provision is clear in two  respects.   It does  not cover the areas specified in Part B of the  table; its  application  is confined to the areas in each  item  of Part A of the table alone.  It is also clear that the tribal areas  in  each  item  of  Part  A  aforesaid  shall  be  an autonomous  district,  but that would be so subject  to  the provisions  of paragraph 1. In other words, if  any  changes are  made  by  the  Governor  in  ,exercise  of  the  powers conferred on him by paragraph 1(3), those changes will  have to  be read into the relevant item in Part A of  the  table, and paragraph 20 will have to be considered in the light  of the  changes thus introduced in the said item.  What is  the extent  of the power conferred on the Governor by  paragraph

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1(3)  and how it can be exercised, are matters to  which  we will   turn  presently;  but  confining  ourselves  to   the provisions of para 1(1), it seems clear that the exercise of the  powers  prescribed by para 1 (3) has an impact  on  the description of the items in Part A of the table appended  to para  20;  and that impact is that the changes made  in  the description  of the items will be introduced in Part  9  and thereby   the  scope  and  effect  of  para  20   will,   in consequence, be suitably modified.      Paragraph  1(3) confers on the Governor power to  issue notification  for the purpose of bringing about any  of  the results  enumerated seriatim by clauses (a) to (g).  In  the present  case,  we  are not called  upon  to  consider  what clauses  (a) and (b) really denote.  The  notification  with which we are concerned is referable to clauses (c), (e)  and (g).  Clause (c) refers to the power 781 to create a new autonomous district, and this power has been exercised  by  the  Governor in creating  a  new  autonomous district to be called the Jowai District.  Clause (e) refers to  the  power  to  diminish  the  area  of  any  autonomous district, and this power has been exercised by the  Governor by  diminishing the area of the pre-existing  United  Khasi- Jaintia  Hills District.  Clause (g) refers to the power  to define  the boundaries of any autonomous district, and  this power  has,  in substance, been exercised  by  the  Governor inasmuch  as after the creation of the new  Jowai  District, the  boundaries  of the  pre-existing  United  Khasi-Jaintia Hills  District,  as  well as the boundaries  of  the  newly created  District are automatically defined.  Similar  power can be exercised under clauses (d) and (f).       The  proviso to para 1(3) imposes a condition  on  the exercise  of the power prescribed by clauses (c), (d),.  (e) and (f) of para 1(3).  It requires that before the  Governor exercises  his power under any of the said four clauses,  he has  to appoint a Commission under para. 14(1) and  consider its report.  The reason why the condition prescribed by  the proviso is not made applicable to cases falling under clause (g)  can  be easily understood; the power conferred  by  the said   clause  appears,  in  the  context,  to   be   merely consequential on the powers prescribed by the previous  four clauses.   It is, however, not quite clear why the  exercise of  the power conferred by clauses (a) and (b) has not  been made  subject  to the condition prescribed by  the  proviso; but, as we have already indicated, we are really not  called upon to consider that aspect of the matter.       Now,  reading para 1(3) by itself, it seems  difficult to  appreciate  Mr.  Setalvad’s  argument  that  though  the Governor  may  have  the power to create  a  new  autonomous district, the notification that he may issue in exercise  of the  said power, will not take effect unless  Parliament  by law provides for the creation of the said new district.   It is  true that the said Dower has to be exercised subject  to the  condition prescribed by the proviso to para 1(3).   But if  the  said condition is satisfied, and  the  requirements prescribed  by para 14 are complied with, is there  anything in  the provisions of para 1 as well as para 14 which  would justify  the  argument  that the exercise  of  the  relevant powers  is not intended to be effective unless  it  receives the approval of parliamentary legislation ? In our  opinion, this question cannot be answered in favour of the appellant. When clause (c) of paragraph 1(3) provides that the Governor may,  by  public  notification,  create  a  new   autonomous district, it does not seem to contemplate that for 782

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the creation of a new autonomous district, the  Constitution requires  something more to be done by Parliament itself  in order to make the public notification issued by the Governor effective,  In  our view, paragraph 1(3)  clearly  indicates that  the Constitution has delegated to the Governor a  part of the power conferred on Parliament itself by paragraph 21. Paragraph 21 shows that Parliament has undoubtedly the power to make any change in any of the provisions contained in the Sixth  Schedule.   A part of this wide power  has,  however, been  conferred on the Governor, because  the  Constitution- makers apparently thought that Parliament need not be called upon   to  exercise  its  own  power  for   bringing   about comparatively  smaller  and minor changes in Part A  of  the Table, and it accordingly decided to confer the  appropriate power on the Governor to take action in that behalf.  If the Governor  has  been  clothed with the  relevant  power,  the exercise of the power must, by itself, be effective to bring about the results intended by clauses (c), (d), (e) and  (f) of  para  1(3).   This power must, no  doubt,  be  exercised subject  to the condition prescribed by the proviso to  para 1(3).  But once it is properly exercised as required by  the relevant  provisions  of  the  Sixth  Schedule,  it  becomes effective and there is no need for parliamentary legislation in that behalf.      In  support  of  his  contention  that  Parliament  has legislated  in respect of matters falling under  para  1(3). Mr. Setalvad has referred us to two parliamentary  statutes. The first one is Act No. 18 of 1954.  This Act was passed by Parliament on the 29th April, 1954 to change the name of the Lushai Hills District.  Section 2 of this Act provides  that the  tribal  area  in Assam now known as  the  Lushai  Hills District  shall,  as from the commencement of this  Act,  be known as the Mizo District.  Section 3 made a  corresponding change  in paragraph 20 of the Sixth Schedule and in Part  A of the table appended thereto.  It is doubtful if the  power exercised  by Parliament in re-naming a District by  passing Act  18 of 1954 is covered by any of the clauses of  para  1 (3);  but even if it was, the exercise of the said power  by Parliament cannot show that the same power, if delegated  to the  Governor,  cannot  be  exercised  by  him  without  the assistance  of  parliamentary legislation  in  that  behalf. This  Act,  therefore, is not at all decisive on  the  point raised by Mr. Setalvad.       The other Act on which Mr. Setalvad relies is Act  No. 42  of 1957.  This Act was passed by Parliament on the  29th November, 1957.  Section 3 of this Act omitted item  4-’Naga Hills District’ from Part A of the table appended to para 20 of the 783 Sixth  Schedule;  and substituted  "The  Naga-Hills-Tuensang Area"  as item 2 in Part B of the said table; and  made  the necessary  change in para 20.  What we have said  about  Act No.  18 of 1954 is equally true about this Act also.  It  is doubtful whether excluding an item from Part A and including it in Part B would fall within any of the clauses prescribed by  para.  1(3);  but  even  if it  is  so,  the  fact  that Parliament  exercises its legislative power in regard to  an item  delegated  to  the Governor will  not  show  that  the Governor  does  not  possess  that  power.   Therefore,  Mr. Setalvad’s  argument based upon what he  calls  "legislative practice" does not really assist him.      Incidentally,  Mr. Setalvad suggested that it would  be anomalous  to hold that the power conferred on the  Governor by  para  1(3)  of the Sixth  Schedule  can  be  effectively exercised  by  him  without  confirmation  by  parliamentary

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legislation.   He  illustrates this point by taking  a  case where  the  Governor decides to exercise  his  powers  under para. 1(3) and issues a public notification accordingly.  If Parliament  does  not approve of the said decision,  it  may make  a  law  reversing the decision in  question;  and  the Governor  may  adhere  to his  earlier  decision  and  issue another public notification.  Such a course of events,  says Mr. Setalvad, would lead to a very anomalous situation;  and the  anomaly can be avoided by holding that the exercise  of the Governor’s power under para. 1(3) has to be confirmed by parliamentary  legislation under para. 21 before it  becomes effective.   We are not impressed by this argument.   As  we have  already  observed,  the  power  of  Parliament   under paragraph  21 is very wide; it includes the power to  modify or  take away the power conferred on the Governor  by  para. 1(3),  and  in  the  very unlikely  event  of  the  Governor attempting   to  challenge  the  decision   of   Parliament, Parliament  can take away his power altogether  by  suitable legislation.  We have no doubt that the argument based on  a possible anomaly overlooks the fact that such an anomaly can inherently  be  said  to exist wherever the  same  power  is vested  in two alternative authorities.  That being so,  the argument   of  possible  anomalies  does  not   assist   Mr. Setalvad’s  contention  that  parliamentary  legislation  is necessary before the Governors decision becomes effective.     Before we part with this topic, it is necessary to refer to  another  aspect  of the problem which  has  relation  to paragraph  20  H  of the Sixth Schedule.   We  have  already observed  that  the  exercise of the  powers  prescribed  by paragraph 1(3) has an impact on the description of the items in Part A of the Table appended to para 20, and we have also indicated that the said impact is 784 that  the changes made in the description of the items  will be introduced in Part A and thereby the scope and effect  of para  20 will, in consequence, be suitably modified.  It  is now  necessary ,to consider the nature of the  modifications which  may be made in paragraph 20 and their impact  on  the question   as  to  whether  parliamentary   legislation   is necessary to make the impugned notification effective.      Paragraph  20(1) provides that the areas  specified  in Parts A ,and B of the table shall be the tribal areas within the  State of Assam.  The impugned notification has  made  a change in the composition of the United Khasi-Jaintia  Hills District  by carving ,out of the said item in Part A of  the table  two separate items, ’viz., the  United  Khasi-Jaintia Hills  District,  and the Jowai District.  It  is,  however, clear  that  this change does not make any  addition  to  or subtraction  from, the total area covered by Part A  of  the table,  and  in  that sense, the modification  made  by  the Governor by the impugned notification does not affect in any manner  the  contents of para 20(1).  Even  after  the  said notification  has  come  into force, para  20(1)  truly  and correctly provides that the areas specified in Part A and  B of  the table shall be the tribal areas within the State  of Assam.      It cannot, however, be disputed that as a result of the modification  made by the impugned  notification,  paragraph 20(2) has to be changed.  Paragraph 20(2), as it  originally stood, describes in detail the territories comprised in  the United.   Khasi-Jaintia Hills District, and as a  result  of the impugned notification, the said description will have to be modified, because the said District has now been split up into  two Autonomous Districts.  That, however, is a  change consequent  upon the change made by the Governor by  issuing

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the  impugned  notification  in  exercise  ,of  the   powers conferred  on him by para 1(3).  In our opinion,  where  the Governor makes changes by virtue of the powers conferred  on him by para. 1(3)(c), (d), (e), (f) and (g), what follows is a change in the internal composition of the different  items in  Part  A of the table.  The exercise of the  said  powers does not change, and in the present case it has not changed, the  total area comprised in Part A. What it purports to  do is  to  change  one  item  into  two  items  of   Autonomous Districts.   Since the power to bring about this  change  is expressly  conferred on the Governor by  paragraph  1(3)(c), (d),  (e), (f) and (g), it is not unreasonable to hold  that the  exercise of the said power should, H as in the  present case, lead to a consequential change in para 20(2).  Such  a change in para 20(2) is a logical corollary of 785 the exercise of the power conferred on the Governor by  para 1(3)(c), (d), (e), (f) and (g).      It  is  possible  that by the exercise  of  the  powers conferred on the Governor by paragraph 1(3)(a) and (b),  the area  included  in Part A of the table  may  conceivably  be either increased or diminished, because the powers conferred on  the  Governor by para 1 (3) (a) and  (b),  prima  facie, refer  to the inclusion of any area in Part A, or  exclusion of  any area from Part A of the table.  We have not  thought it necessary to consider or decide what is the nature of the power  prescribed  by para. 1(3)(a) or (b).   If  the  power prescribed by para. 1(3)(a) or (b) is construed in a  narrow way  in the light of the context of para. 1(3) and  is  con- fined to making changes either by inclusion or exclusion  in regard  to areas already included in Part A, the total  area of  Part A may not be altered even by the exercise  of  such power.      But assuming that the exercise of the said power  would enable the Governor to add to the area included in Part A of the table, or to diminish the area included in the said Part by excluding it from the said Part, a question may arise  as to  the  effect  of  such modification.   In  such  a  case, paragraph 20(1) itself may be affected, and if that happens, it would become necessary to enquire whether the exercise of the Governor’s power prescribed by para. 1(3)(a) or (b) can, without parliamentary legislation, validly make a change  in para.  20(1).   In  dealing with  this  question,  different considerations  would arise.  If an addition is made to  the area covered by Part A of the table by including in it  some outside  area, or if a portion of the area included  in  the said Part is taken out, it would alter the content and  com- plexion of the table considered as a whole, and the question about  the  necessity of parliamentary legislation  to  make such  a  change  effective may assume  a  different  aspect. Including  any  area in Part A, or excluding any  area  from Part  A in the wide sense of the terms used in the said  two clauses  may, prima facie, import considerations of  general policy which, it may be urged, can be effectively dealt with only  by parliamentary legislation; such  considerations  do not apply where the exercise of the powers conferred on  the Governor  by  para.  1(3)(c), (d), (e), (f)  and  (g)  means nothing  more than permutation and combination of the  areas already  included in Part A, and that is purely a matter  of internal  administration.   We are, however,  not  concerned with the aspect of the problem relating to para. 1(3)(a) and (b) in the present case, and need not, therefore,  pronounce any opinion on it. 786

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    What  has happened in this case is that one  Autonomous District  has  been split up into  two  separate  Autonomous District  without making any change in the totality  of  the area include in Part A of the table; and that does not bring about  any change in para 20(1).  Paragraph 20(2),  however, stands  on a different footing; it just gives a  description of  the  area  included in the  United  Khasi-Jaintia  Hills District, and the change made in the said description by the impugned  notification  is of such  a  purely  consequential character  in  relation to the internal  adjustment  of  the areas mentioned in Part A of the table that we do not  think parliamentary legislation is required to make such a  change effective.  Therefore, we are satisfied that it would not be reasonable  to hold that without parliamentary  legislation, the  impugned notification cannot validly effect any  change in item 1 of Part A of the table appended to paragraph 20.      In  this connection, we may incidentally refer  to  the provisions  of paragraph 18 which deals with the problem  of the  application of the provisions of the Sixth Schedule  to areas specified in Part B of the table appended to para. 20. Para.  18(1)(b)  provides that the Governor  may,  with  the previous approval of the President, by public  notification, exclude  from  the said table any tribal area  specified  in Part  B of that table or any part of such area.  This  shows that  where  any  area from Part B of the table  has  to  be excluded  from it, it can be done by the Governor  with  the previous  approval  of the President.  Action taken  by  the Governor  in  exercise of this power  may  conceivably  fall under paragraph 1(3)(a), and in that sense, the inclusion of the area in Part A of the table would, in substance, be  the result of the decision of the President.  It is  significant that  paragraph  18(3)  specifically provides  that  in  the discharge  of his functions under subparagraph (2)  of  this paragraph  as the agent of the President,the Governor  shall act in his discretion.  Thus, it is clear that paragraph  18 deals  with the areas in Part B of the table  independently, and in respect of them, the Governor functions as the  agent of  the  President when he exercises his  power  under  sub- paragraph (2) of the said paragraph.      That  takes  us  to  the question  as  to  whether  Mr. Setalvad  is  right in contending that the  notification  is invalid,   because   before  issuing   it,   the   mandatory requirements  of paragraph 14 have not been  complied  with. What  then  are  the requirements of para 14  ?   The  first requirement is that before taking any action in exercise  of the powers conferred on him by clauses (c), (d), (e) and (t) of para. 1(3), the Governor must appoint a Commission to 787 examine  and  report  on  any matter  covered  by  the  said clauses.  ’he second requirement is that the Governor should consider  the  report made by the Commission  and  make  his recommendations with respect thereto.  The third requirement is  that the Commission’s report along with  the  Governor’s recommendations  has to be placed before the Legislature  of the  State  by the Minister concerned, and this has  to  be accompanied  by  an  explanatory  memorandum  regarding  the action  proposed  to be taken thereon by the  Government  of Assam.   There  is no doubt that in the  present  case,  the Governor of Assam did appoint a Commission.  We have already indicated the terms of reference under which the  Commission was  appointed.  There is also no doubt that the  Commission made  its report, and it recommended the creation of  a  new autonomous  District Council for the Jowai  Sub-Division  of the  United  Khasi-Jaintia  Hills  Autonomous  District   by excluding  the areas comprising the areas of the  said  Sub-

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Division  from  the United  Khasi-Jaintia  Hills  Autonomous Districts.      Mr. Setalvad contends that this report did not in  fact recommend the creation of a new Autonomous District at  all; and in support of this argument, he relies on the fact  that the  recommendation, in terms, refers to the creation  of  a new  autonomous District Council.  He also points  out  that the Commission has observed that "if the inhabitants of  the Jaintia Hills work together and maintain the existing system of  administration,  there  is  no  reason  why  a  separate District  Council  for Jowai should.not be a  success."  The Commission  also added that the establishment of a  separate District  Council would resolve the prevailing  tension  and bitterness,  due to a lack of uniformity in  administration, between  them and in Khasis; and the Commission  hoped  that the creation of a separate District Council would lead to  a better  understanding  between them.  It is  true  that  the reference  to  the  creation of a new  District  Council  is somewhat  inappropriate in the context; but  on  considering the  Commission’s  recommendations as a whole, there  is  no doubt that what the Commission recommended was the  creation of a new Autonomous District.  It would be noticed that  the Commission   has  expressly  recommended  that   the   areas comprising  the  areas of the Jowai  SubDivision  should  be excluded from the existing Autonomous District known as  the United  Khasi-Jaintia  Hills Autonomous District,  and  that necessarily means that the Sub-Division area has to be taken out  and formed into a new Autonomous District.   Therefore, there  can  be  no  doubt  that  the  condition  about   the appointment of a Commission has been satisfied, and that, in fact,  the Commission which was appointed by  the  Governor, has 788 recommended the creation of a new Autonomous District on the lines ultimately adopted in the impugned notification.      It  still  remains to consider whether  the  other  two conditions prescribed by paragraph 14 have been satisfied or not.   Has the Governor considered the report  submitted  by the Commission and made his recommendations, and have  those recommendations along with the report been placed before the Legislature   by  the  Minister  concerned  along  with   an explanatory  memorandum  ?  As to  the  latter  requirement, there  is  no dispute.  The evidence shows that  the  report along  with  an  explanatory memorandum was  placed  by  the Minister concerned before the Legislature.  This  memorandum ’set   out  the  history  about  the  appointment   of   the Commission, and the receipt of its report; and it added that "after  a  careful  consideration  of  the  report  and  the recommendations of the Governor, the Government has  decided to  accept  the recommendations of the Commission  and  give effect to them by taking necessary administrative and  other steps in this direction." The main controversy centres round the  question  as  to whether the  Governor  considered  the report and made his recommendations.       In pressing his argument that it is not shown that the Governor considered the report and made his  recommendations thereon,  Mr..  Setalvad assumes that the Governor,  in  the context,  is not functioning as the Constitutional  Governor who receives the advice of his Council of Ministers, but  is functioning in his own individual character as Governor; and before  the validity of the notification can be  upheld,  it must  be  established  that the Governor  did  consider  the report  and  did make his own recommendations.   It  is  not seriously  disputed by Mr. Setalvad that the power which  is conferred  on  the  Governor  by para.  1(3)  of  the  Sixth

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Schedule,  has  to be exercised by him as  a  Constitutional Governor;  that is to say, he must act on the advice of  his Council  of  Ministers.   It is also  not  disputed  by  Mr. Setalvad that ultimately it is the Government of Assam which has to decide what action to take in such matter.  Paragraph 14(2)  expressly says that the explanatory memorandum  which has  to  be laid before the Legislature of  the  State  must indicate  the action proposed to be taken by the  Government of Assam.  Mr. Setalvad, however, argues that having  regard to the context of para. 14(2), it is clear that the Governor acts  on  his own in considering the report and  making  his recommendations.   His suggestion is that under para  14(2), the  report must first go to the Governor; he must  consider it  and  make  his  recommendations;  and  the  Council   of Ministers must then decide what action to take.  After that 789 stage is over, the report made by the Commission, the recom- mendations  of  the Governor thereon,  and  the  explanatory memorandum drawn by the Government of Assam had to be placed before the Legislature of the State.       According  to the respondents, what actually  happened in  the  present  case  was that after  the  report  of  the Commission was received, the Council of Ministers considered the  report  at  its meeting on the 28th  April,  1964,  and decided to accept the recommendations of the Commission.  An explanatory memorandum was then drawn up, and the whole file was placed before the Governor.  After the Governor read the file,  on  the 21st September, 1964, he wrote on  it  "Seen, thanks".  The affidavit filed by the respondents shows  that after the matter was considered by the Council of Ministers, the proceedings were placed before the Governor, and he read the proceedings and expressed his concurrence with the words "Seen,  thanks" The question is whether the  procedure  thus followed  in  the present case complied  with  the  relevant conditions prescribed by para 14(2) or not.       For  the  purpose of dealing with this aspect  of  the matter in the present appeal, we are prepared to assume that when para 14(2) refers to the Governor, it refers to him  as Governor who must act on his own and not be assisted by  the advice,  tendered to him by the Council of Ministers.   Even on  that assumption, we are unable to see how the  procedure followed  in the present case can, in substance, be said  to contravene the substantial requirements of para 14(2).  What para  14(2) requires is that before the matter. goes to  the Legislature  of the State, the Governor must apply his  mind to  it  and  make his recommendations on it.   It  would  be unreasonable to suggest that in considering the report,  the Governor  is precluded from receiving the assistance of  the Council of Ministers before he makes up his mind as to  what recommendations should be sent before the Legislature of the State.  If the Governor thinks that the questions raised  by the  report  should first be considered by  the  Council  of Ministers  and then submitted to him, we do not see  how  it can be said that para 14(2) has not been complied with.   On the other hand, if the Governor, in the context, is expected to act as a Constitutional Governor, it would be appropriate that  the matter should first be examined by the Council  of Ministers   and   then  submitted  to  him   for   his   own recommendations.   However  one  looks  at  it,  the   facts disclosed  in the counter-affidavit filed on behalf  of  the State  of Assam unmistakably show that the matter  has  been considered both by the Governor and the Council of Ministers and they are 790 all agreed that the recommendations of the Commission should

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be  accepted.  The criticism that the Governor has not  made any  recommendations  as  such,  but  has  merely  contented himself with making a short note "Seen, thanks", has, in our opinion,  no  substance.   We have looked  at  the  counter- affidavit  filed  on behalf of the State of Assam  and  have examined  the  other  documentary  evidence  to  which   our attention  was  drawn.   In the  present  case,  the  record clearly  shows  that the Commission recommended that  a  new Autonomous  District should be created, the Governor  agreed with  the  said recommendation, and so did  the  Council  of Ministers.   Therefore, we see no reason to  interfere  with the  majority  decision  of the High Court  that  the  power conferred  on  the Governor by paragraph 1(3) of  the  Sixth Schedule has been validly and properly exercised by him.      The  result is, the appeal fails and is dismissed  with costs.      Hidayatullah, J. The appellant impugns the judgment  of the  High  Court  of Assam and Nagaland  at  Gauhati,  dated February  5, 1965, by which his petition under Art.  226  of the  Constitution,  filed  to  challenge  notification   No. TAD/R/50/64,  dated  November  23, 1964,  which  set  up  an autonomous  District  of  Jowai after  separating  the  Sub- Division  of  Jowai  from  the  United  Khasi-Jaintia  Hills Autonomous  District,  was  dismissed.   According  to   the appellant  the notification forming the new autonomous  dis- trict  was  ineffective without an amendment  of  the  Sixth Schedule  of the Constitution by parliamentary  legislation; and  even by itself was insufficient because some  necessary steps leading up to the notification were not taken.  In the High Court the petition, from which this appeal arises by  a certificate of the High Court under Art. 132, was heard by a Full Bench and was rejected by majority.  The learned  Chief Justice  (Dutta  J.  concurring) was of the  view  that  the contentions of the appellant were unsupportable while C.  S. Nayudu J. was of the opposite opinion.      I have had the benefit and the privilege of reading the judgment just delivered by my lord the Chief Justice, but  I have  the  misfortune to disagree with the  conclusion  that this  appeal should be dismissed.  The facts are  fully  set out by my lord and I need not repeat them.  Before I give my reasons  why I hold that this appeal should succeed, I  find it  convenient  to refer to  the  constitutional  provisions bearing upon this matter which I apprehend differently.      Originally  the territories of India consisted  of  the States  named in Parts A, B and C of the First Schedule  and the  territories specified in Part D of the  same  Schedule. Them were 791 9  States  in Part A, 9 in Part B and 10 in Part C.  Part  D consisted of the Andaman and Nicobar Islands.  Assam was the first  State  to be named in Part A.  Its  territories  were described as follows :-               "The  territory  of the State of  Assam  shall               comprise  the  territories  which  immediately               before  the commencement of this  Constitution               were  comprised in the Province of Assam,  the               Khasi States and the Assam Tribal Areas."     Different parts in the Constitution laid down provisions as  to  the administration of the different  States  in  the First  Schedule.  Part VI dealt with States in Part A,  Part VII with States in Part B, Part VIII with States in Part  C, Part   IX  with  territories  in  Part  D  and  such   other territories  not specified in the First Schedule and Part  X with the Scheduled and Tribal Areas.      After  the Constitution (7th Amendment) Act, 1956,  the

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whole  of  the  First Schedule was  substituted  by  another Schedule  and  some  of the States had  to  be  renamed  and classified, as a result of the reorganisation of the States. Indian  territory  thereafter  stood divided into  :  I  the States  (14  in number) and 11 the Union Territories  (6  in number).  The reference to the territories of Asam was  also altered and it now reads :               "The territories which immediately before  the               commencement   of   this   Constitution   were               comprised in the Province of Assam, the  Khasi               States   and  the  Assam  Tribal  Areas,   but               excluding  the  territories specified  in  the               Schedule   to   the   Assam   (Alteration   of               Boundaries) Act, 195 1 ". The   Parts   of   the   Constitution   dealing   with   the administration   of   the   several   territories,   already mentioned,  were also revised.  Part VI continued to  govern the  administration of the States and Part VIl continued  to govern  the administration of the Union  territories.   Such changes  as  were necessary in view  of  the  reorganisation effected  in  the First Schedule were, of  course,  made  in these two Parts, but I am not concerned with them.  Part VII and IX were repealed as they were not required.  Part X con- tinued  as  before with an amendment deleting  reference  to States in Part A or Part B of the First Schedule.  As Part X consists of a single article it may conveniently be set down here :       "244.   Administration of Scheduled Areas  and  tribal areas. Sup.Cl/66-4 792               (1)   The  provisions  of the  Fifth  Schedule               shall apply to the administration and  control               of the Scheduled Areas and Scheduled Tribes in               any State other than the State of Assam.               (2) The provisions of the Sixth Schedule shall               apply  to  the administration  of  the  tribal               areas in the State of Assam."       We  are really not concerned with the first clause  of Art. 244 but it may be noticed that there are two  different schedules.  Schedule 5 is for Scheduled Areas and  Scheduled Tribes in States other than Assam and Schedule 6 is for  the tribal areas in the State of Assam.  It may also be  noticed that the Fifth Schedule contemplates not only administration but  also  control of the areas referred to in  Art.  244(1) while  the Sixth Schedule refers to administration only  and not  control.  When I contrast the provisions of  these  two schedules  the last distinction will have some  materiality. We are concerned with the tribal areas in the State of Assam and  the  entire question falls to be considered  under  the Sixth Schedule.  There is no connection between Part VI  and Part  X  and  the provisions of the latter  Part  cannot  be amplified  by the provisions of the former in  any  respect. This  is a fact which is fundamental to the view I am  going to put forward.       Although  strictly speaking we are not concerned  with the  Fifth Schedule, I shall refer to it briefly because  it enables us to see the special and very different  provisions regarding the tribal areas in the State of Assam.  Scheduled Areas and Scheduled Tribes situated in other parts of  India are  governed in common by the Fifth Schedule.   The  tribal areas  in Assam are, however, separately provided for.   The difference between the two Schedules throws some light  upon the way the Sixth Schedule is intended to work and it  shall be  my endeavour to unravel that working but I  shall  begin

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with analysing the Fifth Schedule first.       The Fifth Schedule is divided into four Parts A, B,  C and D and consists of seven paragraphs.  Part A is  general. Paragraph 2 in that Part says that subject to the provisions of  the  Fifth  Schedule the Executive power  of  the  State extends  to  the Scheduled Areas in a  State.   Paragraph  I excludes the State of Assam from the expression "State".  As we shall see presently, the Sixth Schedule does not  contain such provision at all.  The Executive power of the State  of Assam  has not been extended to the tribal areas  in  Assam. Paragraph 3 of the Fifth Schedule then 793 requires  the  Governor  of  each State  to  report  to  the President annually or as often as required by the President, regarding  the administration of the Scheduled Areas in  the State  and the executive power of the Union extends  to  the giving  of directions to the State as to the  administration of the areas.  Again, there is no provision of this kind  in the  Sixth  Schedule.   The only control  of  the  President there,  is  in  respect  of a portion  of  the  Tribal  Area described  in  Part B of the Paragraph 20 to which  I  shall refer later.  Reverting to the Fifth Schedule Part B,  which is headed ’Administration and Control of the Scheduled Areas and Scheduled Tribes’, contains the following scheme.  Under Paragraph 4, Tribes Advisory Councils are to be established. The  duty  of  these  Councils  is  to  advise  on   matters pertaining  to the welfare and advancement of the  Scheduled Tribes  in  the  State’, referred to  the  Councils  by  the Governors.   The  affairs of the Councils  are  governed  by rules made by the Governor.  By paragraph 5 the Governor  is authorised  to  direct  by  public  notification  that   any particular  Act of Parliament or of the Legislature  of  the State shall not apply to a Scheduled Area or any part of the Scheduled  Area  in the State and in applying  the  law  the Governor  can make such exceptions and modifications  as  he may  specify.   The  Governor is given  the  power  to  make regulations for the peace and good Government of any area in a  State which is for the time being a Scheduled Area.   The words ’peace and good Government’ were always understood  as giving  the  utmost discretion in law making:  Riel  v.  The Queen(1) and Peare Dusam v. Emperor (2).  In making the  law the Governor has been given the power to repeal or amend any Act of Parliament or of the Legislature of the State or  any existing  law which is for the time being applicable to  the area in question.  The words " exceptions and modifications" have  also been interpreted as giving powers of amendment  : Queen  v. Burah(3).  These are legislative powers of a  very wide  nature.   They are subject to two  restrictions  only. The first is that before making any regulation the  Governor shall  consult  the  Council and  all  regulations  must  be submitted to the President and until assented to by him,  do not have effect.  Part C consists of one paragraph.  This is paragraph 6. By sub-paragraph (1) the expression  "Scheduled areas"  is  defined as such areas as the  President  may  by order  declare  to  be Scheduled Area.   The  President  has passed two such orders in 1950 relating to Part A and Part B States respectively.  By sub-paragraph (2) the President may at any time by order- (1) (1885) 10 A.C. 675. (3) (1878) 3 A.C. 889. (2) [1944] F.C.R. 61. 794               (a)  direct,that  the whole or  any  specified               part  of a Scheduled Area shall cease to be  a               Scheduled Area or a part of such an area;

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             (b) alter,but only by way of rectification  of               boundaries,any Scheduled Area;               (c)  on any alteration of the boundaries of  a               State  or on the admission into the  Union  or               the establishment of a new State, declare  any               territory not previously included in any State               to be, or to form part of, a a Scheduled Area;               and any such order may contain such incidental               and consequential provisions as appear to  the               President to be necessary and proper, but save               as  aforesaid,  the  order  made  under   sub-               paragraph  (1) of this paragraph shall not  be               varied by any subsequent order." Part  D  then lays down that Parliament may,  from  time  to time,  by  law  amend  the  Schedule  by  way  of  addition, variation  or  repeal,  any of the provisions  and  such  an amendment  shall  not be deemed to be an  amendment  of  the Constitution for the purpose of Art. 368.      To summarize: under the Fifth Schedule the Governor  is the  sole  legislature  for  the  Scheduled  areas  and  the Scheduled Tribes.  He makes the Regulations after consulting the  Tribes  Advisory  Council  and  submits  them  to   the President for the latter’s assent.  The executive  authority of  the  State  extends  to  the  Scheduled  Areas  but  the executive  authority  of  the Union  extends  to  giving  of directions  to  the State as to the administration  of  such areas.   These areas are determined by the President  by  an order and may be altered from time to time by the  President by  another  order but the President cannot alter  an  order made  under  sub-paragraph (1) except as laid down  in  cls. (a), (b) and (c) of the second subparagraph.  Any  amendment of  the Schedule must be done by Parliament. . I  shall  now turn to the Sixth Schedule which differs in many significant respects.      The gist of the provisions as to the administration  of Tribal  Areas in Assam is contained in the first and  second subparagraphs of paragraph 1. It is that the tribal areas in each item of Part A of the table appended to paragraph 20 of the Schedule shall be autonomous districts and if there  are different  Scheduled  Tribes in an autonomous  district  the Governor  may,  by public notification, divide the  area  or areas  inhabited by them into autonomous regions.  The  word ’autonomous’, that is to say, 795 the  possession of the right of self-government is  the  key note  of  the  provisions.  As will  appear  presently,  the legislature,  the  executive and the judiciary  (except  the High Court) in the State of Assam do not freely function for these  autonomous  districts.   The Table  attached  to  the Schedule  gives the list of these districts and  the  Tribal areas.   It  has been changed by  Parliamentary  legislation from time to time.                            TABLE                            PART A I.   The  United Khasi-Jaintia Hills District. 2.   The Garo Hills District. 3.   The Mizo District. 4.    .   .  .    .   .   .   .  . 5.   The North Cachar Hills. 6.   The Mikir Hills. (The name Mizo District was substituted for the Lushai Hills District  by the Lushai Hills District (Change of Name)  Act 1954  (18 of 1964) and item No. 4 "Naga Hills District"  was omitted and was substituted as "Naga Hills-Tuensang Area" as item  2 in Part B by the Naga Hills-Tuensang Area Act,  1957

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by Act 42 of 1957].                            PART B 1.  North  East Frontier Tract including  Balipara  Frontier Tract, Tirap Frontier Tract, Abor Hills District and  Misimi Hills District. 2. The Naga Hills-Tuensang Area". [Item 2 has been deleted by the State of Nagaland Act,  1962 (27 of 1962)].      How  deep is the autonomy in the  Autonomous  Districts and  in  the  Autonomous Regions can be gauged  by  a  short survey  of  some of the other paragraphs  of  the  Schedule. Under  paragraph  2 provision is made  for  constitution  of District  Councils  and Regional Councils which  have  power after  they  are  constituted  under  rules  framed  by  the Governor   to   make  rules  for  their   own   composition, delimitation  of constituencies, qualifications  of  voters, conduct of elections and generally for the conduct of  busi- ness  before  them and the appointment of  officers.   Their powers  and  jurisdictions  go much  further  than  that  of ordinary local 796 authorities.  They have under paragraph 3 power to make laws for  various matters and such laws are effective  after  the Governor   assents   to  them.   Under   paragraph   4   the administration  of justice is entirely under the control  of the  District and Regional Councils and they can  constitute courts and appoint persons to be presiding officers of  such courts  and  no other court, except the High  Court  of  the State and the Supreme Court, has jurisdiction over suits  or cases  assigned to the courts so set up.  The  Councils  can also  frame regulations (with the previous approval  of  the Governor) laying down the procedure to be followed in  trial of  cases and regarding such appeals as may  be  prescribed. Under  paragraph 5 the Governor may, for the trial of  suits or  cases arising out of any law in force in any  autonomous district  or region being a law specified in that behalf  by the  Governor, or for the trial of offences punishable  with death,  transportation for life, or imprisonment for a  term of  not less than five years under the Indian Penal Code  or under any other law for the time being applicable, confer on the  District  Council  or  the  Regional  Council,   having authority  over  such  district  or  region,  or  on  courts constituted  by  such  District Council or  on  any  officer apointed  in that behalf by the Governor, such powers  under the Code of Civil Procedure 1908 or as the case may be,  the Code  of Criminal Procedure, 1898, as he deems  appropriate. The  two  Codes abovementioned apply only thus  far  and  no further.   Paragraph 6 gives power to the  District  Council to’ establish primary schools, dispensaries, markets, cattle pounds,  ferries,  fisheries,  roads and  waterways  in  the district  and  to  prescribe the  language  of  instruction. Under  paragraph  7 District and Regional Funds have  to  be constituted  to finance administration.  Under  paragraph  8 power  to  assess  and collect land  revenue  on  principles followed generally by the Government of Assam and to  impose specified  taxes is given.  Under paragraph 9  the  District Councils  are  entitled  to a fair share  of  the  royalties accruing  from  licences  and  leases  for  the  purpose  of prospecting  for, or the extraction of minerals  granted  by the  Government  of Assam in respect of any area  within  an autonomous  district.  In ’ case of dispute the Governor  is to decide the matter in his discretion.  Under paragraph  10 the  District Council can make regulations  for  controlling and regulating money-lending and trading within the District and  for licensing of certain trades and  of  money-lenders.

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All  laws,  regulations or rules made by  the  District  and Regional  Councils  are  to be  published  in  the  Official Gazette  of the State and on publication have the  force  of law.   Paragraph 12 provides that no Act of the  Legislature of  the State in respect of which the District  or  Regional Councils 797 have  power  to  make law shall apply  unless  the  District Council  by  public notification directs  and  the  District Council  can in so applying the law make any  exceptions  or modifications  it thinks fit.  In respect of any  other  law made  by  Parliament for the Legislature of  the  State  the Governor  shall determine whether it shall not apply to  the autonomous districts or regions and, if so, the Governor may make such exceptions or modifications as he may notify  with or  without retrospective effect.  Under paragraph  13,  the estimated receipts and expenditure pertaining to  autonomous districts  have  to  be  separately  shown  in  the   annual financial  statement  of  the  State  and  laid  before  the Legislature  of  the  State under Art.  202.  1  shall  omit paragraph 14 at this stage and come back to it later.  Under paragraph 15 the Governor may annul any act or resolution of a  District or Regional Council which is likely to  endanger the  safety of India and may even assume to himself  all  or any of the powers vested in the Councils.  Any order made by the  Governor  is to be laid before the Legislature  of  the State and unless revoked by it, continues for a period of 12 months  and  if  so resolved by Legislature  for  a  further period  of  twelve months unless cancelled  earlier  by  the Governor  himself.  The Governor may, on the  recommendation of  a  Commission appointed under paragraph 14,  dissolve  a Council,  direct fresh general election, and subject to  the previous  approval of the Legislature of the  State,  assume the  administration, or place it under the said  Commission. No action to assume the administration shall be taken by the Governor without giving the Council affected an  opportunity of  placing its views before the Legislature of  the  State. Paragraph  17 enables the Governor to exclude an  autonomous district in forming constituencies in the District.  I shall presently  refer  to paragraph 18 which applies  the  above- mentioned  provisions with some modifications to Part  B  of the  Table appended to the Schedule.  Paragraph 19  includes transitional provisions.  The Governor was required by  that paragraph   to  constitute  a  District  Council  for   each autonomous   district  in  the  State  and  till  then   the administration of the District was to vest in him.  He could make regulations for the peace and good government and  they were to become law on the President’s assent.  He could also direct  the  application of an Act of Parliament or  of  the Legislature of the State with such exceptions and  modifica- tions as he thought fit and unless he applied it the law was inapplicable in the Districts.     These  are  the  provisions for  the  administration  of Autonomous  Districts and Regions.  To summarize:  the  laws made  by Parliament or the Legislature of the State  do  not run automati- 798 cally  in  these  areas.  The laws are either  made  by  the District   Councils   or   are   applied   by   them.    The administration  of justice is achieved by the  District  and Regional Councils through their own agencies except that  in serious  offences  the  Governor has to  decide  whether  to invest  the Councils and the courts set up by  the  Councils with  jurisdiction  to  try them.  The  Councils  enjoy  the powers   of  taxation  and  establishing   of   institutions

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mentioned  in paragraph 6. They have their own funds.   Some actions of the District or Regional Councils are capable  of being  annulled  by the Governor and the Governor  may  even dissolve the Councils.  There is complete autonomy as far as the powers and jurisdiction of the Councils go.  A check  is supplied  by the Governor and the Legislature of  the  State comes  into  picture  only when the  Governor  takes  action against the Councils to revoke their acts or resolutions  or dissolves them and takes over the administration himself.     I shall now refer to the paragraphs I did not mention so far.   I  shall begin by referring to  paragraph  18.   That paragraph may be reproduced here :               "18.   Application of the provisions  of  this               Schedule  to areas specified in Part B of  the               table appended to paragraph 20.-               (1) The Governor may-               (a)  subject to the previous approval  of  the               President,  by public notification, apply  all               or  any  of the foregoing provisions  of  this               Schedule to any tribal area specified in  Part               B  of  the table appended to paragraph  20  of               this  Schedule  or any part of such  area  and               thereupon   such   area  or  part   shall   be               administered    in   accordance   with    such               provisions, and               (b)   with    like   approval,    by    public               notification, exclude from the said table  any               tribal area specified in Part B of that  table               or any part of such area.               (2) Until a notification is issued under  sub-               paragraph (1) of this paragraph in respect  of               any  tribal  area specified in Part B  of  the               said  table  or  any part of  such  area,  the               administration  of such area or part  thereof,               as the case may be, shall be carried on by the               President through the Governor of Assam as his               agent and the provisions of article 240  shall               apply thereto as if such area or part  thereof               were  a  Union  territory  specified  in  that               article. 799               (3)   In the discharge, of his functions under               subparagraph  (2)  of this  paragraph  as  the               agent of the President the Governor shall  act               in his discretion. Three  matters  are provided here.  The first  is  that  the Government  may by public notification, apply all or any  of the provisions of the Sixth Schedule contained in paragraphs 1-17  to  any tribal area specified in Part B of  the  table quoted  by me earlier.  The second is that the Governor  may exclude from that table any tribal area specified in Part B. Both  these  powers  are subject to prior  approval  of  the President.  The third matter is that until the tribal  areas in Part B are brought in line with the autonomous districts, the administration must be carried on by the Governor in his discretion as the agent of the President, in the same manner as  if those areas were Union territory.   These  provisions show  that  in  respect of the tribal areas in  Part  B  the Governor   acts   for   himself   when   carrying   on   the administration and any change as contemplated by clauses (a) and  (b) of sub-paragraph (1) of Paragraph 18  must  receive prior approval of the President.  The State Executive or the Legislature have no say in the matter.      I  now  come to the provisions of paragraph  1(3)  read with  paragraph  14 and 20 under which  the  present  action

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purports to be taken.  It is convenient to look at paragraph 20 first.  The table appended to that paragraph has  already been  quoted.  The main part which describes the’ extent  of the autonomous districts named in Part A of the table at the end may now be read:               "20.  Tribal Areas.-               (1)   The areas specified in Parts A and B  of               the  table  below shall be  the  tribal  areas               within the State of Assam.               (2)   The United Khasi-Jaintia Hills  District               shall  comprise the territories  which  before               the  commencement  of this  Constitution  were               known  as the Khasi States and the  Khasi  and               Jaintia  Hills District, excluding  any  areas               for  the  time  being  comprised  within   the               cantonment  and municipality of Shillong,  but               including so much of the area comprised within               the municipality of Shillong as formed part of               the Khasi State of Mylliem:               Provided that for the purposes of clauses  (e)               and  (f) of sub-paragraph (1) of paragraph  3,               paragraph  4, paragraph 5, paragraph  6,  sub-               paragraph (2), clauses (a),(b) and (d) of sub-               paragraph (3) and sub-paragraph (4) 800               of  paragraph  8,  and  clause  (d)  of   sub-               paragraph   (2)  of  paragraph  10   of   this               Schedule, no part of the area comprised within               the  municipality of Shillong shall be  deemed               to be within the District.               (2A) The Mizo District shall comprise the area               which at the commencement of this Constitution               was known as the Lushai Hills District.               (3)   Any reference ’in the table below to any               district (other than the United  Khasi-Jaintia               Hills  District)  and  the  Mizo  District  or               administrative  area shall be construed  as  a               reference to that district or area at the com-               mencement of this Constitution               Provided  that the tribal areas  specified  in               Part  B of the table below shall  not  include               any such areas in the plains as may, with  the               previous   approval  of  the   President,   be               notified  by  the Governor of  Assam  in  that               behalf." These  sub-paragraphs  give  the extent  of  the  autonomous districts.   The table does not identify any area except  by name  but the demarcation of the areas is done by the  above sub-paragraphs.   The tribal areas are not immutable.   They can  be  changed,  so also the  autonomous  districts.   The question is how is this to be done ? The third sub-paragraph of  the  first  paragraph lays down one of  the  steps.   It provides :               "1.    Autonomous  districts  and   autonomous               regions.-               (2)  .   .   .   .    .    .   .    .               (3)   The    Governor    may,    by     public               notification,-               (a)   include  any area in Part A of the  said               table,               (b)   exclude any area from Part A of the said               table,               (c)   create a new autonomous district,               (d)   increase  the  area  of  any  autonomous               district,

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             (e)   diminish  the  area  of  any  autonomous               district,               (f)   unite  two or more autonomous  districts               or parts thereof so as to form one  autonomous               district,               (g)  define the boundaries of  any  autonomous               district.       Provided  that no order shall be made by the  Governor under  clauses  (c), (d), (e) and (f) of  this  subparagraph except after consideration of the report of a 801 Commission appointed under sub-paragraph (1) of paragraph 14 of this Schedule." Some  other  steps are laid down in paragraph  14  mentioned here It provides :               14.   Appointment  of  Commission  to  inquire               into  and  report  on  the  administration  of               autonomous     districts    and     autonomous               regions.----               (1)   The  Governor may at any time appoint  a               Commission to examine and report on any matter               specified    by    him   relating    to    the               administration of the autonomous districts and               autonomous  regions  in the  State,  including               matters specified in clauses (c), (d), (e) and               (f)  of  sub-paragraph (3) of paragraph  1  of               this Schedule, or may appoint a Commission  to               inquire  into and report from time to time  on               the administration of autonomous districts and               autonomous regions in the State generally  and               in particular on-               (a)   the provision of educational and medical               facilities   and   communications   in    such               districts and regions;               (b)   the need for any new special legislation               in respect of such districts and regions; and               (c)   the  administration of the  laws,  rules               and  regulations  made  by  the  District  and               Regional Councils;               and  define  the procedure to be  followed  by               such Commission.               (2)   The report of every such Commission with               the  recommendations  of  the  Governor   with               respect  thereto  shall  be  laid  before  the               Legislature  of  the  State  by  the  Minister               concerned  together with an explanatory  memo-               randum  regarding  the action proposed  to  be               taken thereon by the Government of Assam.               (3)   In   allocating  the  business  of   the               Government  of the State among  his  Ministers               the  Governor may place one of  his  Ministers               specially  in  charge of the  welfare  of  the               autonomous districts and autonomous regions in               the State." Lastly  there  are the provisions,of paragraph  21  and  the question  is  whether  they involve-the final  step  or  are irrelevant in this behalf.  Paragraph 21 reads : 802               "21.  Amendment of the Schedule.-               (1)   Parliament may from time to time by  law               amend by way of addition, variation or  repeal               any  of the provisions of this  Schedule  and,               when the Schedule is so amended, any reference               to this Schedule in this Constitution shall be               construed  as a reference to such Schedule  as

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             so amended.               (2)   No  such  law as is  mentioned  in  sub-               paragraph               (1)   of this paragraph shall be deemed to  be               an  amendment  of this  Constitution  for  the               purposes of article 368." Now the case of the appellant is that although a  Commission was  appointed  and  made its report to  the  Governor,  the Governor   neither  considered  the  report  nor  made   his recommendations as required by paragraph 14.  The Government of  Assam  drew  up its proposals which  were  sent  to  the Governor  who  merely noted on the file, "Seen  Thanks"  and returned  the  papers  which were  then  placed  before  the Legislature  of the State and the Legislature :approved  the proposals by a resolution.  The contention of the  appellant is  that  far  from playing the key role  which  the  policy underlying  the  Schedule envisages, the Governor  left  the entire  matter  to  the Government and at  the  end  of  the deliberations  expressed  himself by  saying  "Seen  Thanks" which  at  best  was  a  very  vague  expression.   In   the alternative  it  is  contended  that  no  action  could   be effective without Parliamentary legislation under  paragraph 21,  to  amend the operative portion of paragraph  20  which Parliament  alone  can amend.  Reference is made  to  legis- lation  by which the tribal areas were changed  on  previous occasions   by  Parliament.   In  my  judgment  both   these criticism are well founded. It  will  be noticed that the Governor’s powers  under  sub- paragraph 3 of paragraph I are to include or to exclude  any area  from Part A of the Table.  These are clauses  (a)  and (b) of this sub-paragraph.  Then the powers are to create  a new  autonomous district (cl. (c) ), to increase (cl. (d)  ) or diminish (cl. (e) ) the area of any autonomous  district, unite  two or more autonomous districts or parts thereof  so as  to  form one autonomous district (cl. (f)),  define  the boundaries of an autonomous district cl. (g). Powers  in clauses (a), (b) and (g) are not subject  to  the proviso  and the Commission under paragraph 14 need  not  be consulted  before  taking action under them.   Action  taken under ’Clauses (a), (b) and (g) need not be reported to  the Legislature 803 of the State.  I shall have something to say about it  later because unless clauses (a) and (b) are also considered it is not possible to, interpret the other clauses. We are concerned with powers exercisable under clauses (c),. (d)  and (e) and the procedure contemplated by  the  proviso to, paragraph 1(3) read with paragraph 14 must be  followed. The  Governor has issued the public notification.  There  is no provision which bars inquiry : Is the action taken  valid ?  Since  the action is not under clauses (a) and  (b)  even Part  A  of Table attached to paragraph 20  is  not  altered either directly or by implication.  Paragraph 1(3) also says nothing  about  the amendment of paragraph 20  and  as  that power  cannot  be  implied  in view  of  paragraph  21  that paragraph  also continues unaltered.  The notification  thus says one thing and paragraph 20 and the Table another.  This is clearly a situation which could not have been.  intended. We are dealing with a Constitution which no agency less than Parliament  can amend.  Take another example.   Suppose  the Governor  next intends to exclude so much of the  area  com- prised within the Municipality of Shillong as forms part  of the  Khasi  State  of  Mylliem.  If he  can  do  that  by  a notification  he may but what about paragraph 20(2) and  the Table  ?  His notification will be that the  area  comprised

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within  the  Municipality of Shillong as forms part  of  the Khasi  State of Mylliem shall form the autonomous  district. The  other part will form another autonomous district or  go out  of the tribal area.  Suppose the Governor next  divided the  Khasi  and  Jaintia  Hills  sections  and  formed   two autonomous districts by another notification.  The  Governor has  no  power  under  clauses (c), (d)  and  (e)  to  amend paragraph  20 or the Table.  Whether he has that power  over paragraph 20 even under clauses (a) and (b) is open to  much doubt.   The  paragraph  and  the  Table  will  thus  remain unaltered  and the notification will render  them  obsolete. It  was  argued  by the learned Attorney  General  that  the paragraph and the Table will be impliedly amended.  I regret I  cannot  accept this argument.  We are  dealing  with  the Constitution.  It provides within itself how Schedules 5 and 6   can  be  amended.   Any  other  mode  of  amendment   is necessarily  prohibited.  There can be no amendment  by  any other  agency  much less an implied repeal  and  an  implied amendment.   Is  the amendment of the  Constitution  such  a simple affair that a notification of the Governor amends its provisions by implication ? I  shall  now consider the cases arising under  clauses  (a) and’(b).  There  is some difference between clauses (a)  and (b) on the- 804 One hand and clauses (c), (d), (e) and (f) on the other.  It is  significant that the procedure of paragraph 14 need  not be  followed when the Governor acts under the former  group. Clauses  (a) and (b) cannot therefore cover the same  ground as  ,clauses (c), (d), (e) and (f).  They are not a  summary of  the  action envisaged by the other clauses.   They  must represent  inclusion and exclusion of areas from Part  A  of the Table.  Otherwise there would be a reference to them  in the proviso.  The proviso covers only those cases where  the area of the autonomous districts is involved and changes are made  therein.  The first two clauses mention the Table  but not the others.  Now the legislative power of the State does not  extend to the tribal areas.  The executive power  being coextensive  with  the  legislative power  does  not  extend either.   In  Schedule  5  the  executive  power  has   been expressly  extended.   In  Schedule  6  there  is  no   such extension.  Similarly the word ’control’ is omitted in  Art. 244(2).   The Union Government also has not been  given  the power to issue directions to the State Government as is  the case in Schedule 5. There is no requirement of prior consent of the President or his approval as in the Fifth Schedule or paragraph  18 of the sixth Schedule.  A  notification  under clauses  (a) and (b) would be subject to no  control  except that  of  Parliament.  This demonstrates the utter  need  of Parliamentary legislation to amend the schedule  particulary paragraph 20 and the Table. The notification issued by the Governor is not under clauses ,(a) and (b) but that hardly makes any difference.  It  does not  amend  paragraph 20 or the Table.  No  doubt  when  all proper  motions  have been gone through  the  United  Khasi- Jaintia  Hills  District will be cut down by  excluding  the Jowai Sub-Division and the Jowai Sub-Division will emerge as an  autonomous  district.  But one such step and  the  final step must be to amend the Sixth Schedule.  That can only  be amended by Parliament under the powers granted by  paragraph 21.   If  the  notification alone did that  there  would  be antinomy   between  the  notification  and   the   Schedule. Paragraph 21 says that Parliament may amend the Schedule  by way  of addition, variation and repeal.  In my opinion  this power still remains to be exercised to complete the chain of

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steps necessary to alter the autonomous districts, the names and  areas  of  which  are laid  down  by  Parliament.   The Governor’s  notification  is no doubt one of  the  means  of achieving the change but the effectiveness can only be given by  Parliament.  No wonder that on three previous  occasions Parliamentary  power was in fact  exercised.   Sub-paragraph 2(A) was added by Parliament.  At 805 that  time  consequential  changes were also  made  in  sub- paragraph (3) and item No. 3 of Part A of the Table was also changed.   It  is to be noticed that there is  a  difference between  paragraph 6(2) of the fifth Schedule and  paragraph 1(3)  of  the  sixth Schedule.  The  former  authorises  the President  to  include  in his  order  such  incidental  and consequential  provisions  as  may  appear  to  him  to   be necessary  and  proper.   As  this,  extra  jurisdiction  is missing  the  Governor acting under the Sixth  Schedule  can only  draw up a notification.  He cannot do  anything  more. Till  Parliamentary  legislation  follows,  the  final   and effective step is wanting in the purported action.  It is as if the key stone is missing. The action of the Governor is, with respect, not sustainable on the other ground also.  The analysis of the provisions of Schedules  5  and  6  into  which  I  went  earlier  clearly demonstrates that the Governor is made specially responsible for various matters connected with the administration of the autonomous districts.  We have seen above that the executive authority  of  the  State of Assam does not  extend  to  the autonomous  districts  as  it does to the  tribal  areas  in States  other  than Assam.  Further the Union has  not  been given the power to give directions as to the  administration of the autonomous districts.  This is because the autonomous districts   and  autonomous  regions  are  administered   by Councils  which,  subject to the control  of  the  Governor, function  independently.   What  the real  position  of  the Governor is, vis-a-vis the Councils on the one hand and  the State Government on the other will be clear if we look  into the  history  of the administration of these areas  and  the previous constitutional provisions relating to the  excluded and partially excluded areas as they were previously called. These  areas, which were known as backward areas, were  from the  earliest  times excluded from the  operation  of  laws, either  completely  or  partially  and  they  were  directly administered  under  laws made by the  Executive  under  the authority  of  the  Governor  General.   These  orders  bore resemblance  to the Orders in Council of the Crown.  As  the legality  of the laws was seriously in question  the  Indian Councils  Act of 1861, made provision validating  these  so- called  laws, by enacting that "no rule, law  or  regulation made before the passing of the Act, by the Governor  General or  certain  other authorities shall be  deemed  invalid  by reason  of  not  having been made  in  conformity  with  the provisions  of the Charter Act." The power, which was  taken away,  was  again conferred on the Governor General  by  the Government of India Act 1870 (33 and 34 Vict. c. 3) and  the Governor General was allowed to legislate 806 separately  for  these backward tracts.   Draft  regulations were  submitted  by  the  Governors-in-Council,   Lieutenant Governors or Chief Commissioners and after their approval by the Governor General became law for these areas.  This state of affairs existed right down to the Government of India Act 1915.  As difficulty arose in determining what laws were  in force in which area, the Scheduled Districts Act XIV of 1874 was passed which enabled public notifications to be  issued.

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The  preamble of that Act clearly sets out that  the  object inter  alia was to ascertain the enactments in force in  any territory and the boundaries of such territories.  This  Act then  specified  the "Scheduled tracts" and the  Local  Gov- ernments   were  given  the  power  to  extend   by   public notification  to  any Scheduled District,  with  or  without modification, any enactment in force in British India.  When the Government of India Act 1915 was enacted, the Government of India Act 1870 (33 and 34 vict. c. 3) was repealed by the 4th Schedule and s. 71 was included which in effect provided the same procedure for making and applying laws as has  been described  above.  When the Government of India Act 1919  (9 and  10 Geo. ch. 101) was passed s. 52-A was inserted  which read:               "The  Governor-General in Council may  declare               any  territory  in  British  India  to  be   a               ’backward  tract’  and may,  by  notification,               with  such sanction as aforesaid, direct  that               this Act shall apply to that territory subject               to such exceptions and modifications as may be               prescribed in the notification.               Where the Governor-General in Council has,  by               notification,  directed as aforesaid, he  may,               by the same or subsequent notification, direct               that  any Act of the Indian legislature  shall               not apply to the territory in question or  any               part thereof, or shall apply to the  territory               or   any   part  thereof,  subject   to   such               exceptions  or modifications as  the  Governor               General  thinks  fit,  or  may  authorise  the               Governor in Council to give similar directions               as respects any Act of the local legislature." Thus at the inauguration of the Government of India Act 1935 the position was that the Governor General in Council or the Governor  etc.  under his directions  legislated  for  these backward  tracts and the Governor General could direct  that any Act of the Indian Legislature should not apply at all or should  apply with such exceptions and modifications as  the Governor General might think fit.  Most of these areas  were excluded  from  the  legislative power of  the  Central  and Provincial legislatures and 807 The Governors were responsible for their administration.  In the bill of the Government of India Act 1935 the distinction between the excluded and partially excluded areas was  made. This allowed the White Paper and a Sixth Schedule was framed in  which  the  list of these areas  was  given.   But  this Schedule was withdrawn and the designation of the areas  was &one  by  the Government of India  (Excluded  and  Partially Excluded  Areas)  Order  1936, dated  March  3,  1936.   The distinction  between  the excluded  and  partially  excluded areas  was  this:  Excluded areas came  directly  under  the Governor in his discretion and therefore the  administration of  the  areas was a direct responsibility of  the  Governor himself.  (Parl.   Debates  Vol. 301, col.  1395).   In  the Report of the Joint Committee it was stated (para. 67)  that in spite of Provincial Autonomy, "the Excluded Areas  (i.e., tracts where any advanced form of political Organisation  is unsuited     to;the    primitive    character     of     the inhabitants)......  will  be administered  by  the  Governor himself  and Ministers will have no constitutional right  to advise  him  in connection with them."  Paragraph  89  again stated  that  "Ministers shall advise the  Governor  in  all matters  other than the administration of  Excluded  Areas." The  position  about  the Excluded Areas was  summed  up  in

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paragraph 144 of the Report thus :               "It   is  proposed  that  the  powers   of   a               Provincial Legislature shall not extend to any               part  of the Province which is declared to  be               an  "Excluded Area" or a  ’Partially  Excluded               Area’.    In  relation  to  the  former,   the               Governor  will himself direct and control  the               administration;  in the case of the latter  he               is declared to have a special  responsibility.               In neither case will any Act of the Provincial               Legislature  apply  to  the  Area,  unless  by               direction of the Governor given at his discre-               tion,  with  any exceptions  or  modifications               which  he  may think fit.  The  Governor  will               also  be empowered at his discretion  to  make               regulations  having the force of law  for  the               peace  and good government of any Excluded  or               Partially  Excluded  Area.   We  have  already               expressed  our  approval of the  principle  of               Excluded  Areas,  and  we  accept  the   above               proposals as both necessary and reasonable, so               far   as   the  Excluded  Areas   proper   are               concerned.    We   think,  however,   that   a               distinction  might  well  be  drawn  in   this               respect  between Excluded Areas and  Partially               Excluded  Areas  and that the  application  of               Acts  to, or the framing of  Regulations  for,               Partially Excluded Areas is an               Sup.  CI/66-5               808               executive  act  which might  appropriately  be               performed by the Governor on the advice of his               Ministers,  the decisions taken in  each  case               being,  of course, subject to  the  Governor’s               special responsibility for Partially  Excluded               Areas,  that is to say, being subject  to  his               right  to  differ from the  proposals  of  his               Ministers if he thinks fit." The administration of these areas thus followed the  analogy of  the  Governor-General’s reserved  departments,  and  the expenditure  for  these  areas  required  by  the  Governor, whether  from  the Provincial or Central  revenues  was  not subject  to the vote of the Provincial Legislature.  In  the administration  of the Tribal areas the Governor was to  act as the agent of the Governor-General.  The administration of the partially excluded areas was a special responsibility of the Governor General. These  provisions  of  the Government  of  India  Act  were, therefore,  so  designed  that  the  "Excluded  Areas"  were excluded  from the Provincial and Central  Legislatures  and the administration of these areas was vested in the Governor in his discretion while the administration of the "partially excluded areas" was in the control of the Ministers  subject to  the special responsibilities of the Governor  acting  in his individual judgment. As  regards the machinery for transfer of areas the  Parlia- mentary  Debates  (Vol.  299,  cols.  1553-54)  contain  the following policy statement :               "There  is bound to be infiltration  from  one               district  to  another, and in  the  course  of               times,  we  may be able to  bring  certain  of               these    districts    under    the    ordinary               administration.   In that case there ought  to               be  power to make the transfer and the  powers               ought to be exercised in such a way that there

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             is   Parliamentary   protection   behind   the               transferred   area.    We  ensure   that   the               transfer,  can only be undertaken by an  order               in  Council, which has to obtain the  approval               of both Houses." The  Order  in  Council  now  has  the  counterpart  in  the notification  of  the  Governor  and  the  approval  of  the Parliament has its counterpart in the amendment of Schedules 5 and 6 which our Parliament alone can undertake. The resulting position was the enactment of ss. 91 and 92 in the Government of India Act 1935 which may be set out here               "91.   Excluded areas and  partially  excluded               areas.               809               (1)   In  this Act the  expressions  ’excluded               area’  and  "partially  excluded  area"   mean               respectively such areas as His Majesty may  by               Order in Council declare to be excluded  areas               or partially excluded areas.               The Secretary of State shall lay the draft  of               the  Order which it is proposed  to  recommend               His  Majesty  to make under  this  sub-section               before  Parliament within six months from  the               passing of this Act.               (2)   His Majesty may at any time by Order  in               Council--               (a)   direct  that the whole or any  specified               part  of  an excluded area  shall  become,  or               become part of, a partially excluded area;               (b)   direct  the whole or any specified  part               of a partially excluded area shall cease to be               a partially excluded area or a part of such an               area;               (c)alter, but only by way of rectification  of               boundaries,     any   excluded  or   partially               excluded area;               (d)on  any alteration of the boundaries  of  a               Province,  or the creation of a new  Province,               declare any territory not previously  included               in any Province to be, or to form part of,  an               excluded area or a partially excluded area,               and any such Order may contain such incidental               and consequential provisions as appear to  His               Majesty  to be necessary and proper, but  save               as  aforesaid the Order in Council made  under               subsection  (1) of this section shall  not  be               varied by any subsequent Order."               "92.   Administration  of excluded  areas  and               partially excluded areas.               (1)The  executive  authority  of  a   Province               extends  to  excluded and  partially  excluded               areas  therein, but, notwithstanding  anything               in this Act, no Act of the Federal Legislature               or of the Provincial Legislature, shall  apply               to  an excluded area or a  partially  excluded               area,   unless   the   Governor   by    public               notification  so directs, and the Governor  in               giving  such a direction with respect  to  any               Act  may  direct  that the Act  shall  in  its               application  to the area, or to any  specified               part  thereof,  have effect  subject  to  such               exceptions or modifications as he thinks fit.               810               (2)The  Governor may make regulations for  the               peace  and  good government of any area  in  a

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             Province  which  is  for  the  time  being  an               excluded  area, or a partially excluded  area,               and  any  regulations so made  may  repeal  or               amend any Act of the Federal Legislature or of               the  Provincial Legislature, or  any  existing               Indian  law,  which  is  for  the  time  being               applicable to the area in question.               Regulations made under this sub-section  shall               be submitted forthwith to the Governor-General               and until assented to by him in his discretion               shall  have no effect, and the  provisions  of               this  Part  of this Act with  respect  to  the               power  of His Majesty to disallow  Acts  shall               apply  in  relation to  any  such  regulations               assented  to by the Governor-General  as  they               apply  in  relations to Acts of  a  Provincial               Legislature assented to by him.               (3)   The Governor shall, as respects any area               in  a Province which is for the time being  an               excluded  area, exercise his functions in  his               discretion." After these two sections were enacted the Scheduled District Act 1874 became obsolete and was repealed by the  Adaptation of Laws Order 1936. The  question is : has the position changed in any way  ?  I think  not. The fundamental fact, as I said before, is  that article 244(2) very tersely says that the provisions of  the Sixth Schedule shall apply    to  the administration of  the tribal  areas  in the State of Assam.  No  inspiration  can, therefore,   be   drawn  from  the  other   parts   of   the Constitution.   No doubt the Governor is the  constitutional head  of the State of Assam having a Council  of  Ministers. But  the history of these backward tracts and the scheme  of the  Sixth  Schedule show that the Governor is  intended  to discharge  special  functions in the administration  of  the Tribal  Areas  in  Assam  in which  a  start  in  democratic institutions  is  being made.  There is no  dyarchy  in  the Tribal areas in Assam so that the Governor may be induced by the Council of Ministers to do contrary to what his judgment requires.   Nor  are  the functions  of  the  Governor  made subject to the scrutiny of the Government of Assam.   Indeed the Government of Assam is mentioned in four places only and an  examination  reveals  that no  special  power  has  been granted  to it at least in three places.  In paragraph  3(a) proviso  it  is  provided that no law  of  the  District  or Regional  Councils shall prevent the compulsory  acquisition of  land for public purposes by the Government of Assam,  in paragraph 8 811 the  assessment  of land revenue and its collection  by  the Councils is to be in accordance with the principles followed by the Government of Assam in the State of Assam  generally, in  paragraph 9 if any dispute arises between  the  Councils and  the  Government  of  Assam  over  the  distribution  of royalties  the Governor is to decide in his discretion  what the  share  of  each should be.  The  fourth  and  the  last reference  is  at the end of paragraph  14(2).   Under  that paragraph   there  is  provision  for  the  appointment   of Commissions for various purposes mentioned in the  paragraph and paragraph 16.  One such commission considers the  forma- tion   of  and  changes  in  the  autonomous  districts   as contemplated  by paragraph 1(3)(c), (d), (e) and  (f).   The sub-paragraph  contemplates  all these reports  because  the report  of  every  commission  appointed  for  any   purpose mentioned  in paragraph 14(1) or paragraph 16 together  with

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the  recommendations  of  the Governor  and  an  explanatory memorandum regarding the action proposed to be taken thereon by  the  Government  of  Assam has to  be  laid  before  the Legislature  of the State.  Confining myself to the  changes in  autonomous districts contemplated by paragraph  1(3)(c), (d),  (e) and (f), it is clear that if the State  Government agreed  with the Governor there would be no need  explaining what  action  the Government was going to take.   The  State Government  would  not then be required to take  any  action (apart from implementing the decision administratively)  and the  Governor  would notify the changes.  The  need  for  an explanatory  memorandum regarding the action proposed to  be taken by the Government would really arise in a situation in which the Governor’s recommendations are not accepted by the State  Government.  We must not forget that there  are  many other matters for which diverse commissions may be appointed and there would be different kinds of reports.  There may be room  for  detailed differences over the  reports  of  other commissions which the Legislature may have to consider.  The Governor must be expected to act independently and not  with the  advice  of  Ministers.  Should  differences  arise  the Legislature  would decide.  It is intended to wield  control over  the Governor.  It is the authority to  decide  whether the  Governor’s action in annulling or suspending  acts  and resolutions   of  District  and  Regional  Councils   should continue  or  not.   The Governor also  has  to  obtain  the previous  approval  of the Legislature of the  State  before assuming  the  administration  of  the  area  of  a  Council dissolved  by  him  and the Council must  be  heard  by  the Legislature.   There  would  be  no need  to  bring  in  the Legislature if the Governor was already being advised by his Council  of  Ministers.   Apart from  this  control  of  the Legisla- 812 ture of the State in specified matters, there is nothing  to show  that  in addition the District and  Regional  Councils which  are  autonomous  in  almost  every  way,  are  to  be controlled by the Council of Ministers through the Governor. It  is  in this background that the action of  the  Governor must be considered and the totality of the action taken this time compared with what was done in the past.  I shall first take the facts.  The Commission made its report on the  24th January, 1964.  In the opinion of Nayudu J. it is  mentioned that  the  entire proceedings were placed  before  the  High Court  and the learned Judge observes that on  28th  August, 1964, there was a note taken on the file which read :               "In the present case we have not referred  the               matter to H.E. (the Governor) at any stage’. The   report  together  with  the   explanatory   memorandum regarding the action proposed to be taken by the  Government of  Assam was placed before the Legislature of the State  on September  25, 1964.  This memorandum in its last  paragraph said :               "After  a careful consideration of the  report               and  the recommendation of the  Governor,  the               Government   has   decided   to   accept   the               recommendations  of  the commission  and  give               effect  to  them  by  taking  necessary  admi-               nistrative and other steps in this direction." There is no doubt a mention of the "recommendations" of  the Governor  but in point of fact there was no  recommendation. All that the Governor did was to see the file before it went to  the  Legislature and wrote "Seen, thanks".  This  in  my opinion, and I say it respectfully, hardly squared with  the special responsibilities contemplated by the Sixth Schedule.

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When  we  turn to the commission’s recommendations  we  find some confusion as to whether a separate Regional Council was being  recommended  for  Jowai Sub-Division  or  a  separate autonomous  district.  The recommendation of the  Commission reads               "To sum up, we feel that if the inhabitants of               the  Jaintia Hills work together and  maintain               the  existing system of administration,  there               is  no reason why a separate District  Council               for  Jowai  should  not  be  a  success.   The               establishment  of a separate District  Council               would,   we  think,  resolve  the   prevailing               tension   and  bitterness,  due  to  lack   of               uniformity in administration, between them and               the  Khasis,  and  we hope lead  to  a  better               understanding between them.                                    813               We accordingly recommend the creation of a new               Autonomous District Council for the Jowai Sub-               division of the United Khasi and Jaintia Hills               Autonomous  District  by excluding  the  areas               comprising the areas of the said  Sub-division               from  the  United  Khasi  and  Jaintia   Hills               Autonomous  District.  As we see it, the  main               obstacle to smooth working of the new District               Council  will be the Jaintias who are  opposed               to bifurcation.                 .      .       .       .         .               In conclusion, we may point out that,according               to  the  1961 Census, the area of  Jowai  Sub-               division   is  1,515  square  miles   with   a               population  of  82,147  compared  with   1,888               square  miles and population of 54,319 in  the               North  Cachar Hills, where there is already  a               separate District Council". The  language is appropriate to the formation of a  Regional "Council  but  it  may  be conceded that  on  the  whole  an autonomus district was meant. In  view of what I have said here bearing upon  the  special responsibility of the Governor as envisaged by the sense and letter ’of the Sixth Schedule considered in the light of the long and uniform history of these backward tracts which have always  been specially administered, it is perhaps right  to think that the Governor was very much in the background  and the initiative and the formation of opinion was by the State Government.  The Governor was apparently only informed after everything was over as to what was being done.  No doubt the Governor’s remarks "Seen, thanks" did not express a  dissent when he saw the file and it may be presumed that he accepted the  proposals of Government.  But that was hardly what  the Sixth  Schedule expected of the Governor.  No material  from any former occasion when the changes were made in the tribal areas,  was  placed  before  us  lo  show  the  practice  or procedure  then  followed.  The only circumstance  that  has come  to  light  shows  that  on  three  separate  occasions parliamentary legislation was undertaken, although it is not in  evidence  whether it was supplemental  to  action  under paragraph  1(3) by the Governor or without it.  It  is  true that legislative practice is not regarded as conclusive  and it  will  be  less so here  because  Parliament  was  always competent to act by itself to amend the Schedule.  But it is a  circumstance  which  also points in  the  direction  that Parliamentary  legislation must cap all other steps  if  the Schedule is to read true to the new situation. 814

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Without  Parliamentary  legislation amending  the  Schedule, readers of the Constitution will have to hunt for Governor’s notifications  to know what is the extent of tribal area  in Assam, how it is divided into autonomous districts and  what is  the tribal area governed under paragraph 18.  In  course of  time when many such notifications have issued  paragraph 20  will become obsolete ,and out of date.  On the  opposite view which I have been unable to accept, it is, even  today, inaccurate and does not mean What it says. In  this  view of the matter I am of the  opinion  that  the appeal should be allowed and the respondent State ordered to bear costs throughout.                            ORDER In accordance with the opinion of the majority the appeal is dismissed with costs. 815