MESA can solve the crisis
The legal interpretations in relation to the ULB elections process and its opposition by the tribal organisations continue to take up the space of almost all kinds of media and platforms that are in existence in the state. There have been very conflicting views and in some case quite lame stands from both sides of the camp. However, more recently the debates have finally reached the realm of the academics with the debate centred more on the legal aspects. The recent press releases by the Joint Action Committee on Women Reservation and the Senior Additional Advocate General of the state that the Municipalities and its related laws are part and parcel of the constitution and that it is not just an Act but a constitutional mandate. There were also instances where the women groups cited the 73rd amendment of the Constitution or the Panchayati Raj being extended to the Scheduled areas like Arunachal Pradesh. The example of Mizoram is another case used by the women group for the conduct of municipal elections in the state.
However, there have been no discussion if there are any constitutional lapses for the extension of the Municipalities to Nagaland when it is excluded in the other Scheduled areas. The Scheduled areas come under the Fifth Schedule except Assam, Meghalaya Tripura and Mizoram that are under the Sixth Schedule. In modern democracy the constitution is drafted by the lawmakers in accordance to the various fundamental principles that become laws for governance, but it is never rigid. There can be lapses and some laws might become obsolete over time. This is the reason why the Indian Constitution in itself have Part XX or Article 368 that pertains to amendment of the constitution. Clause 1 of Article 368 states “Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.” The current interpretations that all constitutional mandate have to be followed, that too in a state like Nagaland that has special status only antagonises the local population more.
For the sake of clarity, the extension of the 73rd Amendment or the Panchayati Raj system is done through the Panchayats (Extension to Scheduled Areas) Act 1996 or the PESA Act of 1996. Through this Act the Panchayats are extended to the Scheduled areas with provisions for protection of existing traditional systems. The Act strictly prohibits the state legislatures from enacting laws against customary law, social and religious practices and the traditional management practices of community resources. Some states had to amend existing laws in conformity with the PESA Act.
The lapses in the constitution is conspicuous because there is no corresponding Act for the extension of the 74th Amendment to the urban areas in scheduled areas unlike the 73rd Amendment which has the PESA Act of 1996. The government had set up the Dileep Singh Bhuria Committee for extending the provisions of 73rd and 74th amendments to Scheduled areas but till today the MESA Act is not passed though the bill was introduced in Rajya Sabha in 2001. This has resulted in a void that has been created and many states have witnessed court battles against the arbitrary extension of the Municipalities to the Scheduled areas. There are also allegations of upgrading the Scheduled areas into municipalities so that it is no longer protected by the PESA Act and so the traditional and customary practices are ignored for the benefit of non-tribals. Technically the states are in violation of extending the Municipalities to the Scheduled Areas without a constitutional sanction but even the courts differ on the interpretation.
The case in Nagaland is unique because it is the only state that is neither under the Fifth Schedule nor the Sixth Schedule but the Scheduled Tribes comprise almost 90% of the population. The lawmakers of the state elected by the people are vested with special powers under the constitution to protect the Naga customary law and procedure, and the ownership and transfer of land and its resources. However the present state government decided to go ahead with the elections without fighting it out in the Supreme Court stating that the chances of the state to be exempted from the 74th amendment was lost in 1993. But there is indeed a void and though the tribal organisations and landowners are not eloquent and articulate in their stance, however their fears are not without reason.