Art 243T vis-à-vis Art 371A

This interpretation made by former Additional Advocate General Nagaland, Pius Lotha has virtually thrown a legal spanner in the works of state chief minister T.R. Zeliang and his cabinet on holding civic polls with 33% women reservation under Part IX-A of Article 243(T).

 In a press communiqué Pius maintained that first, the September 22, 2012 resolution of the Nagaland Legislative Assembly has to be resolved by the Assembly itself in order to nullify the amended Act before the decks are cleared for calling for elections to civic bodies with 33% women reservation.

However, it was also noted that Article 371(A) that is enshrined in the constitution of India protects Nagaland from any Act passed by Parliament unless the Nagaland Legislative Assembly adopts a resolution to the effect. In his communiqué Pius reminded that Article 371A stated that: (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 procedures (iii) administration of civil and criminal justice involving decisions according to Naga customary law and (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.

Based on the above Act, various rights and privileges provided therein were propounded, he said.

He pointed out that the Nagaland Legislative Assembly had passed the Nagaland Municipal Act 2001 (Act.No.10 of 2001) which came into effect after the Governor’s assent on September 26,2001 and published in the Gazette Extraordinary dated October 18, 2001. In 2006 the Act was amended to effect Part IX-A of Article 243T on 33% women reservation. 

 However, with approaching civic body elections there were several tribal groups who objected to applicability of 33% women reservation under Article 243T by submitting several representations to the government, he said.

Amidst the high voltage tussle between opposing groups, Pius pointed out that the state legislature under Rule 221-A(1) appointed a Select Committee to revisit the 33% women reservation and based on the report submitted by it, the Nagaland Legislative Assembly adopted a resolution on September 22,2012 to exempt Part IX-A of the constitution of India pertaining to 33% women reservation in municipal and town councils which effectively nullified the Act of 2001. 

Meanwhile, it may be mentioned that the Naga Mothers Association (NMA) had demanded holding of civic polls due in the state with implementation of 33% women reservation. Representative of NMA filed a Special Leave Petition (SLP) against the July 31, 2012 judgement of the Division Bench of the Gauhati High Court . The Supreme Court on April 5,2016 granted the appeal and also stayed the application of the impugned order of the Division Bench Gauhati High court.

The case has yet to be concluded since final hearing has also not been held. 

At the heart of the matter remains the legal validity and sanctity of Article 371A, which has been reaffirmed on several occasions by the Nagaland Legislative Assembly.

The Article 371A also involves the stakeholders who are- the entire Naga tribes of Nagaland, the stewardship of the elected representatives and the state government.