In today’s 21st century context, affirmative action, equitable representation and inclusive governance are a universal mandate. Nonetheless, how they are established, applied and implemented contextually in indigenous and politically oppressed societies remain to be seen.
Here in Nagaland State, the government’s attempt to implement them through a top-down Indian electoral process is currently facing fierce opposition from many fronts. This has led to conditions where the situation is vulnerable to threats, violence, politicking, rumors, accusations, and competing laws resulting in clashes of understanding and interpretation. While opposition is expected, it also generates confusion and further divides the people.
Within this situation, the ensuing turmoil and polarization currently enveloping Nagaland State around issues of 33% reservation for women, and Naga customary law and procedures in Article 371A of the Indian Constitution requires immediate intervention. The situation demands a timely, open, balanced and honest dialogue that carefully examines the inherent complexities and dilemmas. In order to give a voice to the people’s concerns any dialogue process needs to include women and men of all generations.
Eventually, a definitive equitable representation with inclusive governance and a liberated customary law needs to co-exist alongside in order to ensure that issues of a contextually defined model of affirmative action can be explored. This means the distinctiveness of the context needs to be addressed while analyzing the limitations and contradictions emerging from the present turmoil.
Inevitably, Article 371A finds itself in the eye of the storm. Part XXI of the Indian Constitution contains “Temporary, Transitional and Special Provisions,” which, by its very name, suggests the fluid and temporal character of its contents. It is under this Part XXI that Article 371A is listed in reference to the “Special provision with respect to the State of Nagaland.”
Article 371A is a special provision granted based on the 16 Point Agreement arrived between the Government of India and the Naga People’s Convention in 1960. This means that the Article cannot be read in isolation. It requires a political interpretation and not a legal one due to its historical backdrop and political nature. Confining it to legal interpretations and arguments may only limit the political underpinnings of the Article.
There is, however, a serious drawback. Other than the Sections which grant and define the Governor’s “special responsibility with respect to law and order” and State mechanisms, Article 371A does not define nor determine the nature and scope of the special provisions pertaining to “religious or social practices of the Nagas, Naga customary law and procedure.” This limits the special provisions of the Nagas to one of legal expediency and selective interpretation, rather than an encompassing political understanding and application within the Naga context.
Ironically, while 371A is being perceived as the holder and protector of Naga rights, the real limitation lies with the fact that the lack of substance in Article 371A suggests the absence of a genuine political dialogue and negotiation process in the 16 Point Agreement. This limitation is also the probable cause as to why today’s questions concerning natural resources, oil, reservation and customary law are being subjected to a legal discourse. The fault line lies within the limited negotiating process of the 16 Point Agreement and the undefined provisions of Article 371A.
The fact that the 16 Point Agreement did not represent and embrace the creative political aspirations and rights of the Nagas were grounds on which the people rejected it. And the political struggle continued despite the creation of Nagaland State.
Herein lies the present dilemma. Even as one generation rejected it in the past, today a new generation of Nagas is seeking to protect it on the assumption that it protects Naga rights. And, in the process this generation is learning the hard way that ‘special provisions’ are not the same as ‘rights.’ Ironically, this contradiction has clearly revealed the inherent limitation of Article 371A.
The current turmoil presents the urgency for Nagas across generations to face these limitations and dilemmas together through engaging in critical dialogue so that a clear forward looking political path can emerge!
