Article 371A is the soul of Nagaland state

The first cabinet meeting of the Rio led NDPP-BJP government after retaining power in March of this year was held soon after on the same day the newly constituted cabinet took oath in the presence of the PM, the union Home minister, national BJP President, and the CM of Assam. The agenda of the meeting was not to deliberate on the essence to deliver good governance to the people as promised during electioneering, but on holding of ULB election with 33% women reservation. What was the need to deliberate on holding of ULB election on the same day of taking oath if not to appease and sweeten the ears of the central BJP leaders?
The No. 1 agenda of the BJP is to make India a Hindu Rashtra, and an exclusive special provision, article 371A, in the constitution of India is a fish bone in its throat. The BJP needs to understand that Nagaland was created through a political agreement whereas all the other states of the country were constituted on linguistic basis. Regardless of the smallness of the area and population (some three lakh) at that time, the Naga Peoples Convention (NPC) prepared the 16-points memorandum as it’s minimum demand to be the basis of negotiation with the GOI for creation of a full fledged state within the Indian union. This was accepted by India recognising the uniqueness of Naga political history. Since all matters pertaining to the proposed state of Nagaland were peculiar, provisions with respect to Nagaland state also had to be thereof and therefore clause 7 of the 16-point agreement was incorporated as article 371A in the constitution of India as a ‘special’ provision exclusively for Nagaland. Article 371A, as such, is the soul of Nagaland.
Today, certain tribal bodies might have agreed with the state government to implement 33% reservation for women as and when ULB elections are held but this does not take away the fact that it infringes article 371A by overriding Naga customary law and procedure. This is not about going against women reservation but about the absolute necessity to plug any leak that may drain the potency and sanctity of article 371A which is sacrosanct. Implementing 33% women reservation through the interpretation of article 253T will be at the cost of compromising with the sanctity of article 371A.
The ‘special’ constitutional provision, article 371A, reads: “Notwithstanding anything in the 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.” Only the legislative assembly of Nagaland has been empowered to effect any change, as according to the times, to the four sub-clauses of article 371A, and not the parliament.
For a proper understanding of article 371A, the first five words of the opening sentence of article 371A must be considered in all seriousness without any ambiguity. Article 371A begins with a “non-abstante” clause with the words, “Notwithstanding anything in this constitution.” It becomes important to understand that a non-abstante clause is added to a provision inorder to uphold its enforceability over another provision that is contradictory to it. This clause is used to clarify the intention of the legislature in cases where two provisions appear contradictory. In the case of Nagaland, article 243T has come into contradiction with article 371A. The non-abstante clause in article 371A, therefore, has, in itself, empowered the Nagaland legislative assembly to uphold the enforceability of article 371A over article 243T. This is the speciality of article 371A. If not for this speciality, it becomes vulnerable to constitutional amendments that will come from time to time.
The 74th Amendment is the constitutional provision that enabled the framing of article 253T as an act of parliament. Hence the reasoning that the 33% reservation for women in ULB is not the result of an act of parliament, but that of a constitutional provision is misplaced and misleading to say the least. Article 243T was an act of parliament enabled by the constitutional provision of the 74th amendment. The bottom line is that Nagaland remains unique as a full-fledged state within the Indian union with special safeguard because of article 371A which begins with a non-abstante clause, “Notwithstanding anything in this constitution.” This special provision had already safeguarded us from the constitutional mandate of a uniform civil code (UCC) and any act of parliament which embodies a UCC cannot be imposed upon Nagaland.
Sub-clause IV of article 371A safeguards the ownership and transfer of land and its resources from any act of parliament. Of late we had been vocal against taxation on land and buildings interpreting it as infringement of article 371A. The Nagaland Municipal Act vis-a-vis “Taxation on land and buildings” cannot be interpreted as infringement of article 371A simply because it is not an act of parliament but instead is a state law enabled by article 371A. As stated by legal luminaries, there cannot be a vaccum and therefore wherever an act of parliament infringes on article 371A is where the state legislative assembly is empowered to fill in. As such, the amendment of the Nagaland Municipal Act 2001 in 2006 to enable municipal bodies to collect land and building taxes was a localised law of the state government intended for the common civic good. We cannot actually complain about rotting piled up garbages and clogged drains without contributing our due share to the municipalities as is done everywhere in the world. As it is, all land and resources, be it buildings or any other assets, are owned by the rich – the ‘haves’ and not the ‘have-nots’. For that matter, in Nagaland, all land including natural resources are owned either by private individuals or the community. The government practically owns no land and therefore is the root cause of all the developmental problems faced by the government. Article 471A is used as an excuse to not give land to the government and even forcing the government to give up it’s rightful holding over vast areas. This abuse of article 371A has cost the Nagas dear on the developmental front. The least that, we, as citizens of the state and residents of municipal limits, can do is to chip in our contribution through annual land or property taxes for well-oiled municipal bodies which will then automatically be directly accountable to the tax paying citizens.
Giving credit where it is due, the state government, respecting the demand of the tribal hohos and frontal organisations for a review and deletion of Section 120(i)(a) of the NMA has even gone a step further by repealing the NMA in toto. Something, however, does not add up. There seems to be a misplacing of priority. Tribal hohos and frontal organisations had gone all out against the NMA vis-a-vis Taxation on land and buildings on the ground that it infringes article 371A, while at the same time has accepted 33% reservation for women in ULBs. Shouldn’t it have been the other way round if we are to protect article 371A? Clearly, municipal taxation, as already stated, does not infringe article 371A but agreeing to 33% reservation for women is succumbing to article 243T which infringes 371A. This writer feels that, this time too, we might have played right into the hands of the Rio led BJP government of Nagaland.
All in all, all of Nagaland’s problem with regards to the Nagaland Municipal Act is squarely due to mismanagement and misgovernance of the state leadership. The overconfident nature of governing led to failure to gauge public sentiment resulting in the state missing the time window of a year given by the parliament to all states to give necessary suggestions and rectifications for the 74th Amendment Act. Had the state government advised it’s legal representative to explain to the Apex court the special political rights that Nagaland has, and not give an undertaking to the supreme court for holding ULB election with 33% reservation for women, Nagaland would have been saved from the ignominy of being labelled as having a puppet government.
Benito Z Swu