When Nagaland (erstwhile Naga Hills and Tuensang Area) was given the status of a State by the Constitution (Thirteenth Amendment) Act, 1962 in the Indian Union, Article 371A was inserted into Part XXI of the Constitution that allows Special Constitutional Provisions to the State. Nagaland was then placed under the Ministry of External Affairs. The State of Nagaland and the special provisions thereof, were born, and in the midst of the protracted political struggle of the Nagas when the Naga People’s Convention (NPC) accepted and developed the idea of a separate state for Nagas within India.
The Special Constitutional Provision thus reads: (1) Notwithstanding anything in this Constitution, (a) No Act of Parliament in respect of (i) religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration 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.
The Article as much as it is a Constitutional right and legal mechanism also resonates a political process, therein, holding as a political barometer that represents the will of the people when Nagas deem their autonomy and control over land, customary laws, religious or social practices are threatened by the Government. As such, the Article is seen as one of the recourses that safeguard the collective rights of the Nagas which is perceived as unique because the idea of the Naga identity and the political struggle was organized and informed by the villages, which with its territoriality functioned as small republics.
However, the zeitgeist of the 21st century with privatization, globalization and liberalization at its core have not left Nagaland untouched, therein, the Naga identity attached to the territoriality and functioning of its villages. Today, the challenge is for the Nagas to collectively and responsibly claim her past and her history while also, critically exploring possibilities towards sustainable community and development.
If we then premise that land and the village are at the heart that holds the foundation of Naga identity – social, customs, language, culture and heritage, then: What is the place of Article 371A for the people in Nagaland in the current arrangement with the Indian Union?
At such a threshold examining the pertinent issues on land, customary law, religious or social practices of the Nagas informed by her historical foundation as well as contemporary political arrangement and economic realities vis-à-vis, Article 371A becomes critical. It may be noted that while the status of the Article may be challenged and changed, the historical foundation of the Nagas cannot. Just the same, to understand the challenges and limitations of the Special Provisions inserted into the Constitution in its fullest scope is essential.
The need for such a discussion on the Article presented itself when the contentious subject of Urban Local Bodies (ULB) election re-surfaced when the State Election Commission in March 2023 notified that the ULB polls would be scheduled for 16th May 2023. It may also be pointed out that over time the opposition to ULB evolved from 33 percent reservation for women to also ‘taxation’, therein the issue of ‘land’ for the Nagas. As it is, the UBL election matter is presently sub judice before the Supreme Court and remains unresolved in the state.
It was in the context of the debates and discussions in Nagaland on the issue of the ULB election vis-à-vis, Article 371A that PINE reached out and started conversations with different civil society. During such informal conversations the need to revisit and understand the interpretation of Article 371A as wide and as extensive as constitutionally possible with the support of not only eminent but honourable and dependable constitutional lawyer (s) was felt.
Accordingly, the Symposium was organised to explore more clarity on the interpretation of Article of 371A and facilitate a public discussion by the public themselves with India’s respected constitutional lawyer and senior counsel, Raju Ramachandran, former Additional Solicitor General of India. Alongside, Arkaja Singh, Fellow, Centre for Policy Research, New Delhi, whose areas of interest and experience include municipals acts in India, inclusive urban development policy and programming, land governance, informal settlements, municipal water and sanitation was invited.
Opening the Symposium, Niketu Iralu gave an introduction to the socio-political context that led to insertion of Article 371A into the Constitution of India. Ramachandran in his keynote address presented a Working Paper on the theme. The following are extracts from Ramachandran’s Working Paper for further deliberation and discussion:
1. The Constitution of India is a Federation with a strong unitary bias i.e., a bias towards the Centre. On the other hand, to accommodate the large diversity of the country, its federalism is asymmetrical, and Article 371A is an example of such asymmetry.
2. The general consensus is that the looming omnipresence of the 16-Point Agreement will guide or colour our interpretation of Article 371A. So whether the language of Article 371A can be read by itself as a bare-bones legal text or is the 16-Point Agreement to be used as an aid to the interpretation of Article 371A.
3. No ‘Act of Parliament’, on the four subjects under Article shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides’; meaning, though it would apply to other states in the country it cannot be in Nagaland, unless the Legislative Assembly of Nagaland by a resolution says ‘yes’.
4. However, while individual ‘Acts of Parliament’ may not apply, certain overarching principles of the Constitution will apply and those are going to lead to legal problems, dilemmas, conundrums as we go along.
5. 371A doesn't protect against the Constitution and its fundamental rights. It only protects against ordinary laws of Parliament. So Article 371A which talks of no ‘Act of Parliament’ being automatically applicable, cannot come in the way of the operation of the provisions of the mother document of the Constitution itself.
6. On Contemporary Issues:
I. Municipal Elections and women’s reservation: (a) There is a Constitutional mandate because there was the 73rd Amendment and the 74th Amendment for Panchayats, and Municipalities. The provision for Panchayats in Article 243M specifically exempted the State of Nagaland so as far as village panchayats are concerned. Thus, the Constitution itself exempts the State of Nagaland; (b) But when it comes to Municipalities, Article 243ZC does not exempt the State of Nagaland. So reservation for women is a constitutional mandate from which the State of Nagaland is not constitutionally exempt. However, to carry out a constitutional mandate of reservation, one needs a law. So there was the state law - the Nagaland Municipal Act, 2001; (c) But elections were not being held. People had moved the Supreme Court and then the State of Nagaland has now repealed that law. So there is no legal framework in which women's reservation can be implemented in the State of Nagaland; (d) But this will only be for a temporary phase. Because while the court normally cannot compel a state to legislate, the state will have to answer the Supreme Court because it's a pending case on a constitutional right. In this scenario, Nagaland must satisfy the Supreme Court, that the reservation for women offends Naga customary or religious law which is why the State Legislature doesn't want it; (e) But if God forbid, there is such a custom which is demeaning to the dignity of women in either the customary or religious law of Nagaland, and then someone chooses to challenge that custom, by reference to the fundamental rights of the Constitution, then it's going to be very difficult to say that 371A protects, because 371A doesn't protect against the Constitution and its rights. It only protects against ordinary laws of Parliament.
II. Uniform Civil Code (UCC): While it is a constitutional mandate, it is a ‘directive principle’ and not a ‘fundamental rights’, therefore, Article 371A will come to the aid of the state of Nagaland because if the state of Nagaland does not adopt that Act of Parliament which embodies a UCC, there is no way it can be imposed.
III. Land and its resources: (a) Distinguished jurists who have given their opinions to the Government of India over the years have made it clear that no land and its resources whatever the Central Mines and Minerals Development Act, cannot apply to Nagaland; (b) Nagaland has passed its own law. It has been reserved for the President's assent, which hasn't come; (c) But it seems to be clear that the Mines and Minerals Act- the Central Act, does not apply to the State of Nagaland because the State of Nagaland has not adopted the Act; (d) Then, it must logically follow that the State of Nagaland by itself has the power to pass a law with regard to Land and Minerals.
8. On the question of whether 371A is an ‘enabling provision’ (which enables, facilitates and enables the state of Nagaland to proactively act in the interest and for the welfare of its people); or is merely some ‘protective provision’ (which says, ‘centre don't come here’ and thus, create a stalemate).
371A has not been enacted just to create a stalemate. It protects the state, but at the same time, it doesn't mean that the state will come to a standstill. So if the Centre’s law does not apply, then it must logically follow that the State should be able to make a law on that subject. There can't be a vacuum. And that is the interpretation that can be submitted on the question of Land and Minerals and those related to the enumerated subjects.
9. Can Article 371A be removed? Every part of the Constitution can be amended by Parliament as long as the requisite parliamentary majorities is there and in the case of matters affecting states - the necessary majorities of one half of the state legislatures, that's all that is required. Once those majorities are there, every part of the Constitution can be amended, watered down and abolished. Therefore, 371A also, theoretically, can go.
10. Questions for Nagaland to ponder: “Is asymmetric federalism as embodied in article 370, 371A-J and the Fifth and Sixth Schedules a part of the Basic Structure of the Constitution, or is it just an important feature of the Constitution?” Or more specifically, “Is 371A so basic to the Constitution of India that the Constitution of India is unrecognizable without it… where that the Constitution loses its identity without its existence?”
Arkaja Singhin her paper on ‘Urban Governance in the Context of Nagaland’ broadened the subject by discussing the foundations of local government in India and understanding the 74th Amendment before delving into the municipalisation experiences in Mizoram, Meghalaya and Sikkim in the North East region. Based on her wide research and experiences she suggested Nagaland to deliberate and develop their own framework for urban governance that could work in tandem with their existing structures of local governance. She gave suggestions for Nagaland Municipals and it’s potentials under Article 371(A). Specifically, she pointed out the three key requirements that needs to be addressed:
1. Representativeness, in whatever form, which need not be elections
2. Accountability (and a framework for responsible action)
3. And the ability to coordinate at the grassroots and between the grassroots and the city/urban scale
The discussants for Ramachandra and Singh were CT Jamir, Senior Advocate and Dr G Kanato Chophy respectively.
The first session was followed with a panel discussion on the theme moderated by W Moba Konyak. On the panel were Dr Khriezo Yhome, Dr Hotokhu Chishi, Alemtemshi Jamir, IAS; Dr M Libanthung Ngullie, Neiteo Koza, Advocate.
A total of 74 people representing different organizations and Hohos attended the Symposium. A full report on the Symposium will also be released.
Summary of the One-Day Symposium organised by the Kerünyü Ki Sabang (KKS) and Peace Initiatives of North East (PINE), Dimapur on the theme ‘Article 371A Provisions in the Constitution of India: Scope, Limitations and Challenges’ at Shalom Bible Seminary, Sechü-Zubza on July 8, 2023.
Issued by: Kerünyü Ki Sabang (KKS) and Peace Initiatives of North East (PINE), Dimapur
