Upper Agri Colony, Kohima
Gone or at least going-away are the days of multitude choiring and chanting “16PA a sell-out”, “statehood an illegitimate child”, “Art.371A an imposed certification”. For over half a century since day one the undergrounds (altogether), upper-grounds (regional political parties & its successive governments), middle-grounds (from antagonistic individual to that of apex organizational level), and even outer-grounds (Nagas outside Nagaland), cooperatively denounced 16PA (some even now), disowned statehood (until of late), and degraded Art.371A (until this time). Today, in completely reverse order but necessarily, almost everyone is asserting Art.371A(a) in the manner of birthrights; with curious minds musing whether or not admitting the fact that this very article is a by-product of statehood and a by-and-by-product of so-called infamous 16PA. At times not until one is pushed to the point of helplessness, does realization come that even a small outlet can save. Akin to such situation Nagas of Nagaland are now hammering Art.371A(a).
Without going beyond what has been said and repeated by many about circumstantial background of, and post-reaction to 16PA, statehood and Art.371A, let us, in the heat of UCC’s turbulent visit, delve on the ‘basics’ of Art.371A(a) and then interpret or at least understand it in right perspective beyond how we might have casually or usually read it. One can assert the followings as the ‘basics’ because applicability or non-applicability of entire clause of the article revolves around these predetermined terms:
1) “Notwithstanding anything ...“
2) “no Act of Parliament …“
3) “unless ...”
4) “by a resolution …”
Drafting of constitution by a competent authority of highest capacity, thereafter approval and final adoption by highest lawmaking body- Parliament was not a nonsense exercise, reason for which Indian Constitution on the whole has withstood the test of time till date. Every single word or terms of word wherever derived from was painstakingly studied and then adopted with the objective to define and apply the term compatible with the specific context of Constitution. We also need to tune our intellect with the great minds of constitution drafting members and wisdom of Parliament of yesteryear and relate Art.371A(a) in right perspective to present day reality; else the temptation and possibility of direct constitutional violation and/or even self-undermining own rights without committing constitutional violation is very high. Perhaps, better now (when necessity is felt urgently) than before (when necessity was put elsewhere).
“Notwithstanding anything”: Constitution cannot have a different meaning or definition of the English word used, so also a user of constitution cannot distort the actual meaning. ‘Notwithstanding” is defined in Collins Dictionary as “in spite of: without being opposed, or prevented by”. In constitutional language it is being understood that when a clause begins with the word “Notwithstanding”, the object is to give it overriding effect over other provisions of the Act, which is equivalent to saying, in spite of other provisions (in the Constitution or Act of Parliament), the particular clause (in our case Art.371A(a)) would have a full operation. This is in contradiction to the phrase “subject to”. In legal language “Notwithstanding” is used to indicate that a provision in a law or contract has a superior or dominant effect over other conflicting provisions. When a clause is written with the word “Notwithstanding’, it means that the provision it describes will apply in spite of any other conflicting provisions that may appear elsewhere in the same document. These explanations guide us to conclude that (i) Art.371A(a) is neither “subject to“ Act of Parliament, nor a direct subject of Parliament, and (ii) in a given situation of conflicting provisions (say oil & natural gas issue, UCC etc), Art.371A(a) will have overriding effect over Act of Parliament.
“no Act of Parliament”: Since 1947 up to January 2023 total number of Acts in India is shown to be around 1306, including both of the Center’s and of the State’s. When the Constitution clearly says “no Act of Parliament in respect of … shall apply …unless”; this means none of these 1306 or so Act of Parliament in respect of the given clause shall apply to the State; that is, unless Nagaland Assembly allows. There is a species of bird which at times swallows its own mother during nurse feeding stage. But in our political world no Act of Parliament can or be allowed to swallow mother constitution. Art.371A is a constitutional provision, certainly not a mere act equivalent to that of Parliament’s. No subject-specific or specific-circumstance-dealing-Act can or be allowed to prevail over enshrined constitutional provision. Then on closer look we see where the focal point (shown in bold) of the term “in respect of” actually is; “religious and social practices of the Nagas; Naga customary law and procedure, administration of civil and criminal justice involving decisions according to Naga customary law; ownership and transfer of land and its resources”. Indeed other things are also important but they are of general nature and not a monopoly of Nagas alone. Here the focal point is not on the ‘things’ but of the people- “of the Nagas”; “according to Naga”; “ownership of”. Why? Because circumstances that brought Nagas in, if not the only one, is definitely of the first type in India. If at all Abraham Lincoln’s definition of democracy emphasizing “of the people, by the people, and for the people”, has reaped benefit to citizens worldwide, Art.371A(a)’s (i) of the Nagas, (ii), (iii) by the Nagas, and (iv) for the Nagas, in no way matter less to Nagas of Nagaland
“unless”: It is being observed that overstressing perhaps beyond reasonable point the term and implication of “Notwithstanding anything”, and of “no Act of Parliament in respect of-“ have overshadowed the rather more significant term and implication of “unless the Legislative Assembly of Nagaland…decides”. First, let us find out what and when the word “unless” is used. “Unless” means the same as “if...not”. Unless is used instead of “if...not” in conditional sentences of all types; the order of the clauses doesn't matter with sentences using “unless”. Merriam Webster Dictionary defines the word as “except on the condition that”. In short “unless” is a condition or conditional term.
Supposedly Art.371A(a) begins with “no Act of Parliament…” and ends with sub clause (iv)- “ownership and transfer of lands and its resources”; in that case no Act of Parliament shall apply whatsoever to the State. Again in such order conflicting provisions will not arise in the first place. But adding another paragraph- “unless the … Assembly … so decides;” clearly imply application of Act of Parliament in respect of Art.371A(a) is subjected to prior assent of the Assembly. The other way of understanding this text is that it is Assembly’s constitutional prerogative to decide whether to apply or not the Act in question. The Constitution is silent whether, on rejection of Act of Parliament on ground of conflicting with or infringing upon the spirit or letter of Art.371A(a), Nagaland Assembly can enact its own Act on related clause, but the Constitution also does not spell any restriction on the Assembly to act so. Still then the Constitution has given immense power to the State Assembly to either accept or reject, and in the instance of latter case the Act in question is irrelevant and shall not apply.
“by a resolution”: Assembly’s decision to apply or not Act of Parliament over the given clause should necessarily come through process of resolution passed by the House. Whether the Assembly has done so in the past or not is not being questioned; the issue here is, resolution is mandatory in the context of Art.371A(a). Assembly, whichever way cannot just sulk and accept or reject Act of Parliament without adopting a resolution to that effect. It will amount to contravention of the constitutional provision- “unless… by a resolution so decides”. Actually the Constitution briefly introduces the article with “Notwithstanding anything in this Constitution” and leaves remaining part- “no Act of Parliament shall apply…unless the …Assembly by a resolution so decides”, reposing full authority on the Assembly to decide what is considered best and most practical for the State. In other words the Constitution has given full advantage to the Assembly to determine the fate of Parliament’s Act on Art.371A(a). And no government, court or even Parliament can act contrary to this constitutional empowerment.
Indian Constitution is the supreme law of the land and as stated earlier the Constitution has immensely empowered Nagaland Assembly over certain provisions. Art. 371A is no less a mini-constitution; its adoption was not accidental but premeditated so as to provide full constitutional protection to the distinct identity of the Nagas. Indeed Nagas’ is not only the one; there are 371B (Assam); 371C (Manipur): 371D & 371E (Andhra Pradesh); 371F (Sikkim); 371G (Mizoram); 371H (Arunachal Pradesh); and 371I (Goa). Amongst these 9 special provisions, of the 7 states are attributed with the term “Notwithstanding anything”, but only to that of Nagaland and Mizoram are mentioned- “no Act of Parliament in respect of- (i), (ii), (iii), (iv)”. Yet what is assured to Nagaland- (iv) “ownership and transfer of land (and its resources)”, is not fully assured to Mizoram - (iv) “ownership and transfer of land” –Stop! (“and its resources” is not included). Again Nagaland Assembly is not bound by condition put upon Mizoram: “Provided that nothing in this clause shall apply to any Central Act in force in the Union Territory of Mizoram immediately before the commencement of the Constitution (Fifty-third Amendment) Act, 1986:”
Knowing our rights is a necessity and knowing more about it is more useful. This is why we venture into the realm of expertise to learn more and more about our given rights. But even more important and demanding now is for the ability to also personally walk down the less trodden, if not untrodden path of self-exploration of own given rights or authority in tune with worldview of constitutional interpretations without perhaps relying so much on some uninvolved or uninterested others to help us define and interpret our exclusive rights which seemingly is at stake. Where Act of Parliament shall apply and where it shall not apply, either way is unambiguously defined by the Constitution. Ignorance is a threat, but knowledge without action is also a risk. The Constitution has empowered Nagaland Assembly with authority to decide the fate of Act of Parliament in respect of the clause in question and with authority come responsibility. Responsibility to protect Art.371A(a) at any cost.