Transformative Constitutionalism, Indigenous Sovereignty, and Self-Governance: Examining Tribal Constitutional Autonomy in India and Māori Constitutional Recognition in New Zealand

Abstract

Indigenous rights and self-government have become important issues in modern constitutional governance. This study investigates the relationship between transformative constitutionalism, indigenous sovereignty and self-governance. It focuses on the issue of tribal constitutional autonomy in India. One other issue that it focuses on is Māori constitutional recognition in New Zealand. While both have established legal and institutional frameworks to safeguard indigenous interests, the two countries vary widely in their constitutional frameworks, historical paths, and indigenous involvement in decision-making.

The investigation employs doctrinal and comparative legal methodologies while evaluating constitutional clauses, legislations, judgment orders, treaty provisions, government documentation and public literature. The study in India is focused on the Fifth and Sixth Schedules of the Constitution, Panchayats (Extension to Scheduled Areas) Act, 1996, and Forest Rights Act, 2006. The study in New Zealand is focused on the constitutional significance of the Treaty of Waitangi, the role of the Waitangi Tribunal, and evolving mechanisms of Māori representation and co-governance.

The article argues that constitutional recognition alone does not guarantee meaningful indigenous self-governance. Tribal autonomy in India is constrained despite constitutional safeguards.  In the same vein, even though New Zealand has used treaty-based mechanisms and instituted reforms to advance Māori interests, tensions persist over the degree of indigenous authority permitted in a system based on parliamentary sovereignty. The conclusion of the study is that indigenous rights will become effective when constitutional recognition entails real participation, institutional empowerment, and respect for indigenous decision-making.