Friday, January 28, 2022

Municipal Act is null and void: Nagaland Bar

By EMN Updated: Jan 25, 2017 1:12 am

• Says Part IX (A) of Indian Constitution is not applicable to Nagaland

• Says status of Nagaland is a lacuna in constitutional provision

Dimapur, Jan. 24: In what could yet turn out to be a major factor in deciding the increasingly fractious confrontation between the state government and the Naga tribe hohos on the issue of elections to urban local bodies with 33% reservation for women, the Nagaland Bar Association (NBA) on Tuesday said that Part IX (A) of the Constitution of India – which pertains specifically to municipalities – is not applicable to the state of Nagaland.

“Nagaland is outside of the provision of Part IX (A) in as much as Nagaland is entirely a tribal state – that is our interpretation. Part IX (A) does not embrace a state where it is wholly tribal. Nagaland is absolutely not covered by this provision,” the president of NBA, Tali Ao told newsmen on Tuesday at Dimapur. The interaction with the Bar Association was an initiative of Eastern Mirror.
He explained this interpretation by citing the 42nd Amendment Act of 1976. “Here allocation of seats in the Legislative Assembly is provided under Article 170 and Article 332 of the Constitution. It provides for the reservation of seats for scheduled caste and scheduled tribe in the Legislative Assembly. Article 332-3 (A) provides that at the time of passing the 42nd amendment Act, if in any state the entire Assembly seat are held by tribals, then except one seat, the entire seat shall be reserved for ST.

“That is the exceptional thing granted for Nagaland, Arunachal (Pradesh), Meghalaya and Mizoram. Special references have been made to these four states…which shall continue until the general census after 2026…till then out of the 60 seats, because of this constitutional provision we have reserved only one seat for general. It is open to be contested by all.”

Conversely, he said, this proves that ‘the entire state (of Nagaland) is a tribal state, no exception at all’. The framers of the Constitution during the subsequent Amendment (94th Amendment) had no concern for the state of Nagaland for enacting municipal provident, he said. “In Part IX (A) of the Constitution, there is no provision for the state where the entire state is dominated by tribals, it is outside of the provision of Part IX (A).”

In other words, Part IX (A) is applicable to the states where tribals or scheduled castes are in minority and the majority are non-tribals, non-scheduled castes, he said. “So Part IX (A) is applicable to the cosmopolitan societies, cosmopolitan not in terms of nationality but in texture; mixture of entire communities.”

According to Tali, the pros and cons of the contents of Article 243 (P) to 243 Z (G) were not critically examined ‘in the context of the social and economic conditions of the Nagas’ by the state government while drafting the Nagaland Municipal Act of 2001. “Because as per the Sixth Schedule, until the enactment of the State of Nagaland Act 1962, the entire present state of Nagaland was under the Sixth Schedule by the name Naga Hills District covering the districts of Kohima and Mokokchung and the Naga tribal areas covering the districts of Mon and Tuensang.

“Prior to the Naga Hills Tuensang Area Act 1957, the present state of Nagaland was divided into two parts. One part was under the NEFA, the other was the Naga Hills District. So under this provision (Sixth Schedule) tribal areas comprised of the Naga Hills district and the Naga tribal areas. So, Nagaland is wholly a tribal state unlike other parts of the country.”

He pointed out that Part IX (A) provides for establishment and regulation of municipalities for states with cosmopolitan population. In those areas Part IX (A) of the constitution is applicable because a reading through the entire contents of Part IX (A) speaks of those cosmopolitan societies, not tribal areas, Tali added.

“It is a serious question which the government of Nagaland has mistaken [and] erroneously drafted and adopted this Municipal Act thinking that Nagaland is also like other cosmopolitan areas unlike the status given to us by the Constitution.

“Now Article 243 Z (C) has made a provision that Part IX (A) shall not be applicable, there is a prohibition, constitutional embargo against the enforcement, against the applicability of this Part IX (A) which is provided under Article 243 Z (C). It provides that no part of this Part IX (A) shall be applicable to the scheduled areas and tribal areas,” he pointed out.

According to the NBA president: “Scheduled areas are those areas where the scheduled tribes and scheduled castes are the dominant people. So in the scheduled areas, these municipal laws are not applicable. After the deletion by the Act of Nagaland State 1962, Nagaland was deleted from the Sixth Schedule. Sixth Schedule is no more applicable to Nagaland because we have become a full fledged state.

“So after deletion from the Sixth Schedule the government of India should have issued a notification to include Nagaland under the Fifth Schedule because the Fifth Schedule is applicable to Nagaland in terms of the provision of the Constitution. But so far, neither the government of Nagaland insisted nor the government of India issued any notification embracing the state of Nagaland in to the scheduled areas, this is the problem.”

He termed this as a lacuna in the constitutional provision. “We (Nagaland) should have been notified to be included in the Fifth Schedule but that also is not done. So there is a lacuna in the constitutional provision so far as the status of Nagaland is concerned. However in legal fiction, there is a fiction under the law, Nagaland should have been deemed to have been included in the Fifth Schedule.

“There is a deeming provision that is legal fiction. Nowhere is it mentioned under the law but it should be deemed to have. So after deletion from the Sixth Schedule, Nagaland should have been deemed to be covered by the Fifth Schedule, because we are solely a tribal area, and nowhere in India the entire state is dominated by the tribals. One exceptional thing, Nagaland state is the only exception where the entire territory is inhabited by tribals.”

He also said that the view of Nagaland Bar Association was that the entire Nagaland Municipal Act of 2001 is null and void. “It is not only illegal but it is null and void. Null and void means without authority of law they have enacted it. They have wrongly invoked the law (Part IX A), the government of Nagaland has wrongly invoked the constitutional provision to pass the municipal Act.

This is a nullity in the eyes of the law. So long as it is purported to have been enacted basing on Part IX A of the Constitution then the entire law shall collapse, was the view of the NBA.

In place of the existing Nagaland Municipal Act, the Bar was of the view that Nagaland can have its own version ‘because ample provision is given to us’. The government of the day and the stakeholders should sit together and put their minds together and they have to come out with some solution, they felt.

Special Marriage Act and Uniform Civil Code

The Nagaland Bar Association also deliberated on the Special Marriage Act which, according to them, was extended by the state government contradicting Article 371 (A), and paving way for the much debated Uniform Civil Code (UCC) to the State.

“Special Marriage Act is not applicable to Nagas as it was enacted by the British to be applied mostly in southern parts of the country where many Christians reside. It was enacted because there was a practise of intermarriage between Europeans and Indians”, asserted NBA.

The Special Marriage Act 1954 was extended to Nagaland in 2002 as an act to legalise marriage in Nagaland, whereas by virtue of the Sixth Schedule of the Constitution, the Special Marriage Act, 1954 was not applicable to the erstwhile Naga Hills District.

The Special Marriage Act, 1954 is applicable to any person irrespective of religion, and inter-caste marriages are performed under this Act. And thereafter such marriages and associated issues are governed by the provisions of the Act.

However, they pointed out that Naga marriage system is governed by social customs and practises but the state government continues to apply Special Marriage Act and the people remain silent. Therefore they questioned the people’s silence over the application of Special Marriage Act by the state government.

On the extension of Indian Succession Act to Nagaland, the NBA questioned the state government for applying an Act foreign to Naga customs, and the people for keeping silent over it, they stated the Act is meant only for Hindus and not even for Muslims.

Naga people should be conscious of the social and political status, and political gains should not dilute our special status, they felt. They also pointed out on the daily adverts on Succession claim published by District administration in local dailies and remarked ‘the Hindu Succession Act cannot be applied to the Nagas’.

Deliberating on Family Court Act, the NBA underlined Article 371 (A) gives special status for social and customary practise to the Nagas and the government should empower bodies like the village councils, town committees or Gaon Buras with family courts so that is legally accepted in the country.

Special Marriage Act, Indian Succession Act and Family Court Act are contradictory to Article 371 (A) but the state government has abdicated our authority, maintained the Association.

Taking a jibe at successive state government’s policies, they asserted ‘Article 371 (A) is [becoming] only for academic interest and not for practical exercise because the government is remaining idle overlooking this provident and importing central laws into the state which is not at all applicable for Nagaland’. They also asserted ‘the concept that Article 371(A) is non-amendable is also wrong.

By EMN Updated: Jan 25, 2017 1:12:17 am