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Op-Ed

Adulterated Cabinet Decision on Nagaland Municipal Act, 2001; from a Layman’s Perspective

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By EMN Updated: Oct 26, 2016 1:43 am
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Much have been said and talked about the implementation of the elections to Urban Local Bodies, citing reasons that the fund meant for municipal bodies are being stalled if the Government don’t go ahead with it and the money spend on legal fees exceeding expectations, and the observations of some senior Supreme Court lawyers that the verdict might likely favour the petitioners which will embarrass the Government, etc are the excuses described by the government of the day to go ahead with the elections to Urban Local Bodies. To go for elections in Urban Local Bodies basically implies, this cabinet is all set to implement the Judgement and Order of the Hon’ble Gauhati Court’s order quashing the Nagaland Legislative Assembly cabinet’s decision dated 21st December 2009 to postpone indefinitely the said election vide Order dated 21st Oct. 2011. To go for elections amounts to waiving before the Supreme Court as a Respondent in the matter of: Smt. Rosemary Dzuvichu & Anr, Petitioners VERSUS State of Nagaland & Ors Respondents in (Civil Appellate Jurisdiction), Special Leave Petition NO.(C) 26794 of 2012. A contest between Part XI A (74th Amendment) and Article 371 A (13th Amendment) of the Indian Constitution.

Following the huge sea of unrest all over Nagaland against the 33% reservation of Women led by Naga Hoho and ENPO submitted their joint representation on 16th March 2012, followed by Public of Kiphiri Town, dated 7th March 2012, Gaon Burah Union, Jalukie Town dated 5th March 2012, Sumi Hoho dated 15th March 2012, Kohima Village Council dated 29th Feb. 2012, Kyong Hoho dated 12/ 03/ 2012 and the survey report of the Naga Hoho with their (then) constituent Units Rengma Hoho dated 10/06/2011,Ao Senden dated 10/06/2011, Kyong Hoho dated 11/06/2011, Pochury Public Forum dated 16/06/2011, Chakhesang Public Organization dated 17/06/2011, Zeliangrong Baudi dated 30/06/ 2011, Sumi Hoho dated 9/08/2011, Naga Council Dimapur(sub-ordinate body) dated 16/08/2011 and the Angami Public Organization dated 18/08/2011. The resentment and representations of various NGO’s and tribal Hohos led to the formation of the Select Committee on Government Resolution on the Nagaland Municipal Act, 2001.

Indeed the decision of the Cabinet, 10th August 2016 have taken the populace as well as the Civil Society Organizations by surprise. A careful post-mortem into this mess reveals the clashes or conflicts of opinion then and now. A select Committee on Government Resolution on the Nagaland Municipal Act, 2001 was constituted on 22nd March 2012 under the chairmanship of (1) Shri. T.R. Zeliang, (2) Dr. Shurhozeli, Minister as member, (3) Shri. I. Imkong L. Imchen, Minister as member, (4) Shri. C. Kipili Sangtam, MLA as member, (5) Shri. K.L. Chishi, MLA as member, (6) K.V. Pusa, MLA as member and (7) Shri. C. Apok Jamir, MLA as member.

Following are the extracts of the speeches of the members of the select committee on 20/03/12 in the Nagaland Legislative Assembly session. Quotation of the Chairman of the Select Committee, …. “From time immemorial, Naga as a society have developed their social, cultural and other ethnic practices without the aid of any law. Law is an artificial instrument which intruded into tribal society and alters the natural evolution of the tribal society. This 33% Reservation is a legally propounded idea which will permanently alter the natural evolution of the Naga society. Any demand for any such thing must come from within our society in view of our unique history and not thrust upon us from external forces. This is the reason why we have constitutional filter of 371A to screen the parliamentary laws including constitutional amendments Acts so that the innate nature of the Naga society is prodded forever. Some may say that why should we not tune ourselves to modernly. We are modern without losing touch with our tradition, our way of becoming modern is little different from non-tribal societies becoming modern. We have our umbilical cord always fetter to our tradition, our ethnic and cultural practices. Naga society can never be severed from our unique cultural norm and that is the reason why constitution makers made Article 371 A, a permanent one to remain in the constitution forever unlike other provisions which are there temporarily for 10-15 years and so on. Mr. Speaker Sir, the 2001 Municipal Act Amendment was done in 2006 in this Assembly. It was done because of the court order to the state Government to enact 33% reservation for women. But to my mind, no court of law can enforce any Act of Parliament in the State of Nagaland under special provision of Article 371 A.”

Speech of Dr. Shurhozele, Minister, (NPF) Minister of Urban Development in the Nagaland Legislative Assembly session on 20/03/12. …. “Sir, on this, I want to make some observation. The above statement of the NMA suffers from two fallacies. The first fallacy is that 33%
reservation fro women in Panchayats as mandated in articles 243D of Part XI of the Indian Constitution, is inapplicable to Nagaland in view of the exception granted in Articles -243M which says that Part XI of the Constitution of India will not apply to Nagaland.

The second fallacy is the opinion of the NMA that article 371A is subject to othe provision of the constitution of India and Nagaland Assembly, by invoking article 371A, cannot supersede other provision of the Constitution. NMA should know that Article 371A starts with the non obstante phraseology. “Notwithstanding in the constitution” including the 74ht Amendment Act, stand superseded. Whenever in a law, the words “Notwithstanding anything” are used, it means, it is a law capable of superseding other provision. Therefore, article 371A is the supreme law that empowers Nagaland to be the Supreme Legislative Body in the state with capacity to supersede all Parliamentary laws including the constitutional Acts.

Even the Law Minister, Shri Asoke Sen, when article 371A was being enacted declared in Lok Sabha on the 28th August, 1962 that Nagaland
Legislative Assembly has the unique Legislative Assembly powers of superseding the central laws.

It is surprising to note that the Naga Women, under the aegis of the NMA, in their bid to grab political power, develop such misconceived
notions, like the Nagaland Legislative Assembly does not have powers to supersede Constitution Acts, which is really unfortunate. And it will be in the interest of Naga Women if their leaders do not cross the perimeter of the subject matter may invite more criticism.”

To my opinion, 2012 and 2016 aren’t that far. The above speeches on the 20/03/2012 in the Assembly session of the then chairman who is now non other than the Chief Minister and one of the member who was then the Minister in-charge of the department who is now non other than the chief of the NPF party and the cabinet decision of the 10th August 2016 at the official bungalow of the Chief Minister does not resemblance at all. Towering speeches as a member of the select committee, upon which the Naga people believed in and voted to power, because of the fact that the privileges’ accorded to the Nagas under 371A is beyond the reach any other states wherein overriding powers is inserted acknowledging the inherent and inalienable rights of the Nagas. Article 371 A is a constitution within a constitution of India. This provision supersedes all Acts of the parliament. This Article exist in all the sense of Supreme Court, for which even after nearly three decades of the case between Assam and Nagaland border, the case is lying in the Supreme Court which cannot be just disposed off, because of this very Article, an off shoot of 9 Point Agreement and 16th Point Agreement. People stood together with you in protecting and upholding our rights enshrined in the constitution like you mentioned in the assembly. However, all of a sudden, cabinet in contravention of the Assembly Resolution rooting to go for elections to Urban Local Bodies is very much uncalled for, an attempt to demean our rights.

If the cabinet is hell bend with elections to Urban Local Bodies then, the Government is waiving from the Supreme Court, any Naga
individual or groups should be prepared to go to Supreme Court in order to assert and protect our rights. A close study of this matter
indicate, the issues related to peculiar tax and land holding system of the Nagas have never been raised or taken into consideration while opposing the applicability of Part XI A of the Constitution of India. The Nagaland Municipal Act, 2001 imparts not only the participation of women by reserving seats, which contravenes Article 371 A, it touches tax and land holding system as well, which will be contested heavily against the Government by the people very soon for ratifying the GST wherein taxation such as wealth tax, building tax, business tax, income tax, all kind of taxes will be paid by the Nagas under the policy of One Nation, One Tax an off shoot of Uniform Civil Code. Jammu & Kashmir is exempted from the purview of GST because of Article 370. Nagaland Legislative Assembly members should have had referred it to the Assembly committee for scrutinizing the Parliamentary laws under Rule 221-A of the Rules of Procedure and Conduct of Business in Nagaland Legislative Assembly since it impinges Article 371A on tax. Ratifying the GST by Nagaland at the behest of the Prime Minister over a cup of coffee with all the NDA ruled states Chief Ministers at New Delhi might cost us dearly.

Which one do the public consume? Assembly session of the NLA on 20/03/12 or the Cabinet decision at CM’s bungalow on the 10th August
2016! The present Nagaland Government using this very provision in Nagaland Petroleum & Natural Gas with its own modalities is very much appreciated and at the same time baffled to witness, the Government pleading the Lotha Hoho to withdraw the PIL lodged by them claiming it is against the spirit and undermining Article 371A. Same yardstick should be applied while interpreting the provisions of Article 371A which should also be applied to the petitioners of the Nagaland Municipal Act, 2001 in the Supreme Court of India. Why not we stand together with the resolutions adopted by the Nagaland Legislative Assembly on the 22nd September, 2012 safeguarding our birth right rather than be cursed by the generations to come for selling out our rights.

Implementing the Hon’ble Court’s Order after more than 5 years can be treated how the leaders and members in the select committee took Nagas for a ride by blatantly lying as though they had a genuine concern for the future of the Nagas. Nagas must rise up to the occasion and raise our voice against the adversaries of the Nagas who just want to give away our birth right.

Article 371A is not a gift nor donation to the Nagas, it is a reiterating stand of the fact of the FREE Nagas and the Supreme Court might interpret the validity of 371A in different constitutional provisions in its own posture, however the fact remains that 371A is a creation out of POLITICAL ISSUE which the Supreme Court of India cannot just write off. We are called Indians because of this provision. Scrapping it off by GOI or Supreme Court will be a formal acknowledgement of the fact that Nagas are not Indians.

Chitho Nyusou
Meluri Village

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By EMN Updated: Oct 26, 2016 1:43:05 am