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.
(To be concluded…)
Vaprumu Demo
Upper Agri Colony, Kohima
Nagaland Post Launch on 30 Dec 1990 is the first and fore-most english daily newspaper of Nagaland.
© 2021 Nagaland Post. All Rights Reserved.