Constitutional provision of Article 371 (A) on Clause IV redundant, says Imkong L Imchen

Kohima: Advisor of Information and Public Relation, Soil and Water Conservation, Imkong L Imchen on Friday said that Nagas vigorously talk and think about safeguarding Article 371(A) but its constitutional provision, particularly Clause (IV), has become ‘redundant’.

He was addressing a press conference in Kohima, where he spoke about Article 371(A) and its Clause (IV) which is about ownership and transfer of land and its resources.

Imchen asserted that the history of the Naga struggle for political emancipation seriously started in the early 1950s when the Nagas took voluntary plebiscite on May 16, 1951, which was spearheaded by the Naga National Council (NNC).

During those decisive and turbulent times, he said the understanding of the Nagas was: “Nagas are not Indians and Nagaland is not Indian Territory. The Nagas are not demanding independence from India and the Nagas are not trying to secede from India. The case of Nagaland is a case of aggression. It Is War (AZ Phizo).”

“A state of emergency equivalent to martial law in practice existed in Nagaland since early 1950s and all Naga areas were turned into warzones. Horrible events were taking place but very few were known to the outside world,” he quoted Tajen Ao.

The advisor shared how history vividly reveals that ‘for a sovereign independent Naga homeland, the forefathers/fathers had willingly given their lives.

It is understood that in the given tormenting situation and times Naga Peoples Convention (NPC) was formed in 1957 with an idea to explore means of possibility for restoration of peace and harmony in the beleaguered Naga lands, he said.

However, he affirmed that the initiatives made by the NPC were out-rightly rejected by the then NNC/Federal government, and therefore till date, the draft memorandum of 16-Point Agreement and subsequent Article 371(A) of the Constitution is never accepted as the final political solution.

However, the delegates of NPC went ahead with their preconceived political agenda and signed the 16-Point Agreement with the Government of India (GoI) without the popular mandate of the Naga people, he stated.

The agreement was signed before the then prime minister of India without the knowledge and affirmation of the Naga people and Article 371(A) was inserted in the Constitution of India by virtue of the 16-Point Agreement of NPC, he said, adding that there are self-contradicting flaws and undefined paradoxes in the implementation of Article 371(A).

“Bare reading of Article 371(A) squarely reveals that no definition or meaning is given with regard to ownership and transfer of land and its resources which is given in Clause IV. This very inherent flaw creates difficulties and confusion in the realm of interpretation,” he said.

“Further observation is that there is no specific legislative power accorded to the Nagaland Legislative Assembly to legislate with respect to the special provision of Article 371(A) Clause IV. This unexplained ambiguity and flaw gave rise to never-ending confusion. By all indications, it is observed that Article 371(A) does not per-se provides blanket protection and safeguards to its special provisions. Article 371(A) is rather a protective provision but not an enabling provision of law in the Constitution.

“It is a saddening inherent flaw that NLA was not accorded the power to make its own law in the enumerated clauses of Article 371(A). If the NLA could not legislate on the special clauses of Article 371(A), then Nagaland State, which was created through a written bilateral political agreement, could only legislate in the enumerated list III in the Seventh Schedule known as State List in consonance with the provision of Article 245 read with Article(s) 246, 247, 248 of the Constitution of India. This present arrangement has already made Nagaland State on the same footing with other states in the Indian Union who were otherwise created under State Reorganization Commission in accordance with Article 3 of the Constitution of India,” he added.

He stated that the process for creation of present Nagaland State was preceded by the merger of Naga Hills District in Assam and Tuensang Frontier Division, carved out of NEFA in 1957 to form Naga Hills Tuensang Area (NHTA), while in 1960, the then prime minister Jawaharlal Nehru agreed to the proposal for the 16-Point Agreement that formed the basis for creation of Nagaland State which was later signed with the Naga People’s Convention on July 26, 1960.

Imchen apprised how it was reported that the idea of convening the Naga People’s Convention (NPC) in 1956 was given by the Intelligence Bureau (IB) of GoI and was patronized by them so as to make the Convention a reality, stating that the first draft of the 16-Point Agreement was drafted by the IB themselves.

It is a known record that after obtaining the opinion of the then legal luminaries like H.M. Seervai, F.S. Nariman, R.C. Sarkar and M. Hidayatullah in the 1980s, all of whom concurred that “Land and its Resources” as used in Article 371(A) Clause IV includes mines and minerals while accordingly the NLA passed a resolution on July 26, 2010 to the effect that laws made by the Parliament on Petroleum and Natural Gas would be inapplicable in the state of Nagaland with retrospective effect, and subsequently invited Expressions of Interest (EoI) from companies to explore and exploit the 11 oil and gas fields it identified across 11 districts in the state, asserted the legislator.

However, he stated that this legislative initiative by the government of Nagaland was extinguished by GoI, Ministry of Home Affairs by its Office Memorandum dated 23-05-2012, wherein it said “the Union Ministry is of the considered view that Article 3 71A (a) does not confer legislative power to NLA on regulation and development mineral oil.

Therefore, he stated that the resolution passed by the Nagaland Assembly in July, 2010 is unconstitutional and invalid, adding that it is saddening the above unilateral office memorandum in the form of order that NLA has bypassed entry 53 of List-I of the Seventh Schedule and Mines and Minerals (Regulation and Development) Act 1951 is that entirety of the matter is palpably erroneous, incurably not tenable and manifestly arbitrary.

Further, Imchen asserted that it is nowhere seen in the records that the Mines and Minerals (Regulation and Development) Act 1957 has been approved by the NLA as an applicable statutory law in the state from the date of statehood till date.

It is therefore, in the light of the above legislative process initiated by the State of Nagaland and the concurrent nullifying executive orders so pronounced by the Union of India, the so called sacrosanct provisions of Article 371(A), more particularly Clause IV, which envisaged ownership and transfer of land and its resources, has from the threshold to hitherto has failed and has tormented down to bottomless pit.