‘Article 371 (A) misinterpreted, misunderstood and misused’

Kohima, May 20 (EMN): A retired judge of the Supreme Court on Saturday said Article 371 (A) of the Constitution of India, which grants special provisions to the state of Nagaland, has been ‘misinterpreted, misunderstood and misused’ largely due to ‘lack of communication’ between the executive and the common people.

Speaking during a workshop about the contentious urban local bodies (ULB) issue in relation to Article 371 (A) the retired judge, HK Sema, said the sections opposing the municipal elections and women reservation were of the view that it violated Article 371 (A), which, he opined, was absolutely ‘a wrong direction’.

The programme was organized by the Ex-Parliamentarians’ Association of Nagaland (Ex-PAN) at the Capital Convention Centre in Kohima town.

Emphasizing that it happened mainly because of lack of education, Sema said that concepts such as constitution, judiciary and democracy are new to tribal areas such as Nagaland: there is lack of education and there is a wide communication gap between representatives of the people and the people, Sema said.

The retired judge recalled his hearing about the Nagaland Legislative Assembly passing an act with reservation for women: he thought it was a sign of maturity.

But when stiff opposition came, Sema said, he expressed dismay that no one had stepped forward to organize sensitizing events such as workshops where stakeholders can participate and attempt to educate that women reservation does not infringe Article 371 (A): it is not an act of Parliament but an act of the state legislature. He reiterated that any message of education must percolate to the people at the grass root.

‘Because of Article 371 (A), Nagas think other provisions not applicable to state’

Delivering a legal perspective on the issue, Sema said the Nagas think that because of Article 371 (A), other provisions of the Constitution are not applicable in the state. He cautioned that if such a notion is upheld, it will produce perilous results and there will be constitutional breakdown.

The retired judge reminded that the state of Nagaland itself is a creation of the Constitution. In a democratic country like India, which is governed by Rule of Law, the people’s liberty and freedom are under the law in fact. In a democratic state like Nagaland, he reminded, the people cannot say the constitution is not applicable to the state.

Sema read out excerpts of the provisions of said Article, and explained that what it prohibits was the ‘act of Parliament’ and does not forbid the state’s legislature to make legislations. “Women reservation is not an act of Parliament, it is an enactment by our own legislation,” he said.

Sema pointed out also that there were four clauses under the 371 (A) and none of them prohibits women reservation. However, assuming there was such a custom that does prohibit reservation, he said that still any custom which is opposed to public policy is invalid in law.

He maintained that Article 243T was a public policy and if anyone says ‘because of his custom’ that constitutional provisions, parliamentary acts or state legislations passed under 243T is not applicable to Nagaland, ‘that is opposed to public policy.’

Giving more background on the subject, Sema said the equality clause enshrined in Article 14 provides for equal treatment in equal circumstances, and does not mean that rich and poor should be taxed equally.

“In a tradition-bound orthodox male-dominated society like ours, can we say men and women are equal? Absolutely not. So, women reservation is simply creating a levelled playing field,” he asserted. He adding to it that the reserved area was created for women to elect themselves and empower women, which is a constitutional mandate (Article 15).

The dangers in interpretation

The retired judge also highlighted what he called the difference between the common man and the judiciary: the former read the acts and rules while the latter interprets them. He said that if one shreds Article 371 ‘too far’, there is a danger as the Supreme Court has decided many cases of such type. Justice Sema said the apex court had time and again made it clear that the custom and personal law cannot overwrite the statutory provisions of the constitution.

On the Nagaland Municipal Act 2001, Sema said that the people were opposed to taxation. He was of the view that the perception of the people questioning why they should pay tax, needs to change.

People want good sewerage system, good roads, drinking water, better marketing facility etc. but they are not willing to pay tax to the municipal body, which is a local self government, Sema lamented.

Unless the public pay revenue, he wondered, how the municipality will pay for the services. Here, Sema said that the people need to change their mindset and start thinking that they are paying for their own comfort, their own health and their own welfare in fact.

On the Income Tax Act of 1961, he said by virtue of sub section 26 and section 10, the Nagas were exempted from paying tax provided the source of income was from the tribal areas of Nagaland. He explained that municipal tax does not come under the Income Tax Act, but is simply revenue for local self government.

Also, HK Sema talked about the need to change the general perception of the Naga people of ‘what can I get’ to ‘what can I give to the Nagas.’ He called upon the ‘creamy layer’ of the society to communicate more with the people at the grassroots and to work for them for the growth of the Naga people as a whole.

He expressed a concern also about the division in the Naga society today. The Nagas are a “small people” yet they are faced with a looming enemy in ‘ism’.

“There is no word; there is no place for the word ‘you’ and ‘them’ in our society. It is ‘we, the Nagas’…. If any Naga is growing in any discipline or profession, push him up. Don’t pull him down, because one day, Nagas will reap the harvest of his growth,” he said.

Another speaker also noted that there had much misunderstanding on the facts regarding the ULBs, women reservation and Article 371 (A). Retired High Court judge Zelre Angami explained in detail the legislative history of the present municipal laws, litigation’s history with respect to ULBs, the municipal laws in force, and the operation of Article 371 (A).

ULBs, he said, are statutory institutions / bodies that are to function as organs of the state (local self government) in accordance with the statutory provisions, and that the customary practice has no role in the functioning of ULBs.

While pointing out that reservation for ST and women under Article 243T was a constitutional scheme ‘on all India pattern,’ Angami maintained that reservation for ST was undoubtedly for the benefit of the Nagas. He asserted that it is also a legitimate expectation of Naga women to secure the benefit of reservation that has been made available to ST/SC women in the other states. The deprivation of such benefits may bring about legal consequences, the retired judge cautioned.

Also, he opined that it may not be legally sound to resist the constitutional scheme provided in Article 243T, as the very concept of reservation for ST may build a case for making reservation for women as to empower them.

Also explaining on the role Article 371 (A), Justice Angami noted that many perceive Article 371 (A) to be treated as fundamental right for the Nagas. However, he cautioned that a considered interpretation should be given to the application of Article 371 (A) lest the same do not become a hurdle on the progress of the state through simply applying on a mechanical mode.

Stating that Article 371 (A) would not have the effect of validating all the customary laws/practices or usages, he at the same time, reminded that the customary laws would have to be tested by the provisions of the Constitution (Part III).

Therefore, he maintained that a duty is cast on the law makers to judiciously use the procedure laid down in Article 371 A which required a considered exercise on its application and ensured that it is applied as intended for the good of the people.

Judge suggests state law commission setup

Observing that the knowledge of law among the people of the state is still very young as compared to the age of the state, retired judge HK Sema has suggested a state law commission to be headed by a retired high court judge during the Ex-Parliamentarian Association of Nagaland workshop on ULB in relation to Art 371 (A) today at Kohima.

Justifying his proposal, Sema said that a state law commission headed by a retired High Court judge was required.

No consensus among tribal orgs: chief minister

Chief Minister Dr. Shürhozelie Liezietsu attended the occasion as the chief guest. He highlighted the sequence of events from the time the Nagaland government held a consultative meeting with the Naga tribal organisations in November last year and basing on the broad consensus that was arrived at the meeting, some provisions in the Nagaland Municipal Act were amended in December.

On women reservation, Liezietsu told the gathering that the state government was aware that there was no consensus amongst the tribal bodies on the issue of women reservation. Nevertheless, as the decision to conduct ULB elections with women reservation was already taken, government in October 2016 started the process of ULB elections as per the provision of the Nagaland Municipal Act.

“Frankly speaking, the state government had not, in their wildest imagination, anticipated that the opposition to women reservation in ULBs would throw up so many ugly incidents that the State was made to witness during January and February this year,” the chief minister said.

He remarked that the state government decided to go ahead with the ULB elections with women reservation with the objective to protect Article 371 (A), which is very important for the state and the people.

The interesting thing is, he pointed out, both the state government and the organizations opposed to the ULB elections were saying that they were doing so in order to protect Article 371 (A).

“Those who opposed the election say that women reservation in ULB will infringe on the Naga customary practices, which are duly protected by Article 371 (A). On the other hand, the state government opines that if we do not conduct ULB election with women reservation as mandated in Article 243T of Part IX-A of the Constitution of India, and also in our own state Municipal Act, merely on the ground that Article 371 (A) overwrites all other Constitutional provisions, the Supreme Court, in connection with the pending case filed by Naga women organization, may give an adverse ruling and interpretation of Article 371 (A) of the Constitution of India, thereby jeopardizing other related issues mentioned in Article 371 (A), such as issues of land and its resources, which are very dear to the Nagas,” Liezietsu recalled.

This being the case, he said, it is very necessary that proper dialogue and discussions are held on the issue ‘so that mistakes are avoided.’