THE DEBATE ON RESERVATION FOR WOMEN

“What needs to be understood is that, the reservation for women has not been brought about by an
Act of Parliament or an Act of the State, but through a constitutional provision viz, Article 243T”

 

Kakheto Sema
Sr. Addl.Advocate General,
Nagaland

 

The reservation for women in Urban Local Bodies has become an issue that has rocked the State of Nagaland. Social Organizations and individuals have voiced their protest against the reservation for women, averring that the same is against the customary practices and laws of the Nagas. The common ground for the protest is that the reservation for women in Urban Local Bodies is in violation of Article 371A of the Constitution of India which protects the customary practices and laws of the Nagas. As a member of the legal fraternity and as a Naga, I have concerns about the views expressed. Each of us, as citizens of the State, in relation to issues of Public importance, must be careful about voicing informed opinions. We are all too familiar with the penchant of the Nagas for indulging in articulating less than informed public opinions and the consequences arising there from. With due respect to all social organizations and individuals, I write this article to share my opinion on the debate.

 

The Constitution of India is one of the longest Constitutions of the world. It contains 395 Articles and 12 Schedules. Parliament has the power to amend the provisions of the Constitution from time to time. By the 74th Amendment, which came into effect on 01-06-1993, Parliament incorporated Part IXA in the Constitution of India. This Part of the Constitution is in relation to the Municipalities, and comprises of Articles 243P to Article 234ZT. Article 243T, in this Part, provides for the reservation of one third of the total number of seats to be filled by direct election in every Municipality, for women. The said Article then delegates to the State Legislatures the power to enact Laws to give effect to the reservation.

 

Article 234T of the Constitution is therefore the foundation for the reservation for women in Urban Local Bodies. What needs to be understood is that, the reservation for women has not been brought about by an Act of Parliament or an Act of the State, but through a constitutional provision viz, Article 243T. At the cost of repetition, for emphasis, the reservation for women is provided by a Constitutional provision and not through an Act passed by Parliament or the State Legislature.

 

Those opposed to the reservation for women cite their reliance on the protection afforded by Article 371A of the Constitution of India. One cardinal principle in the interpretation of Status is that, the provisions of Law must be read in the entirety and not on piecemeal basis. Article 371A begins with a non-obstante clause, which most opponents of reservation for women vehemently quote time and again.  For a proper understanding of the said Article, the relevant portion is quoted hereunder.
“[371A. Special Provision with respect to the State of Nagaland:-

 

(1) Notwithstanding anything in this constitution:-
a)     No Act of Parliament in respect of-
i)     Religious or social practices of Nagas,
ii)    Naga customary law and procedure.
iii)    Administrative of civil and criminal justice involving decisions according to Naga Customary Law,
iv)    Ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides ”

 

Referring to the introductory sentence “Notwithstanding anything in this Constitution”, most of us have the opinion that this sentence has application to all laws framed by Parliament. However, a reading of the entire Article would show that this sentence is qualified and relates to firstly, Acts of Parliament and secondly the said Acts of Parliament in relation to the subjects mentioned in Clauses (i) to (iv). The emphasis in this Article is therefore, “Acts of Parliament”. Acts of Parliament are passed under the enabling Articles of the Constitution.

 

The argument with regard to reservation for women and customary practices and laws vis-à-vis Article 371A must therefore be understood in the constitutional context. Article 371A is in relation to the Acts framed by Parliament and its ambit does not cover the Articles of the Constitution itself. By the very incorporation of Part IXA and Article 243T thereof, in the Constitution of India through the 74th Amendment, the issue of Women’s reservation in Urban Local Bodies is no longer debatable in relation to Article 371 A.

 

Whether or not women’s reservation in Urban Local Bodies violates Naga customary practices and laws is itself a debatable issue. However, with the incorporation of 243T in the Constitution of India, the said debate has been effectively removed from the purview of Article 371A. This would mean that those who protest against women’s reservation as violative of Article 371A of the Constitution of India, are actually protesting a non -issue.

 

In the year 2012, the State Assembly adopted a resolution to exempt itself from the purview of Part IXA of the Constitution of India. An objective assessment of the said resolution would disclose that the State Legislature lacked the competence to exempt itself from the purview of the said Part of the Constitution of India. Parliament alone is competent to exempt the State from the said Part or any other Part of the Constitution of India.  This anomalous situation was corrected by the State Legislature in the year 2016. Drawing a simple analogy, can a father become the son and vice versa? In the scheme of the Constitution of India, no State Legislature has the competence to exempt itself from any Part of the Constitution of India.

 

Since the women’s reservation which came into effect in 1993 was not implemented by the State, the women, through their organization approached the Hon’ble High Court. The Single Bench of the Hon’ble High Court directed the State Government to implement the provisions of Part IXA and Article 243T with regard to women’s reservation. This direction was issued holding that Article 371 A has no application in relation to Article 243T. In appeal by the State, the Division Bench of the Hon’ble High Court set aside the judgment of the Single Bench and allowed some time to the State to examine the matter. The matter went up to the Hon’ble Supreme Court and this case is still subjudice.

 

The Central Government as well as the State Governments derive their authority from the Constitution of India. The constitution of India is the fountainhead of all laws enforced within the Indian Union. Article 243T is a part of this fountainhead and it is the duty of the State of the Nagaland to give effect to its provisions. Therefore, beginning from the year 1993, it was the duty of the State Government to give effect to the provisions of Article 243T. The exercise in this regard was taken by State Government with the introduction of the Nagaland Municipal Council Act 2001. This Act passed by the State Legislature carries out the delegated duty of the State to implement the provisions of Article 243T of the Constitution of India. The misconception in the minds of the people in general is that, by the passing of this Act, the State itself provided for reservation for women in Urban Local Bodies. The bottom line is that, whether it is the current Government or any other succeeding Government, the implementation of Article 243T is a Constitutional mandate. There is a huge distinction between a Constitutional mandate and a Statutory mandate. In the larger context, it must be appreciated by all of us that the State Government has a duty to carry out its Constitutional as well as Statutory mandates and any failure in this regard would be tantamount to a breakdown of the Constitutional machinery.

 

In Conclusion, I urge all the social organizations and individuals who are opposing women’s reservation in Urban Local Bodies to objectively examine the matter afresh. As citizens of the country and the State, we are bound by the Constitution and the laws framed there under. Our objections and protests in relation to issues of governance must be based on the principles of the Rule of Law. Every society must progress and our society has progressed from the villages to towns and cities. In the process, we have adopted the democratic form of Government with elected representatives. We have undertaken a voyage of development and growth. The customary practices and laws of the Nagas is still protected and we have institutions in this regard in the villages. Many of the institutions that we have adopted, strictly speaking, are alien to the customary practices and laws of yesteryears. In addition to the proposition that reservation for women is not a subject covered by Article 371A of the Constitution of India, it is perhaps time for an attitudinal change in our mindsets. Reservation for women has come to stay whether we like it or not and we should bury our difference and look to the future.



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