Sanctity of Article 371A, Sub-Clause (IV): Land and Its Resources

Dr S.C.Jamir
Former CM & Governor

Hopes and aspiration flew thick and fast for the Nagas when it was evident that the British were preparing to leave Indian shores and hand over the rein of governance to the Indians. The Nagas were fiercely fighting for their freedom along with India’s dedicated struggle for independence. History is witness to the fact that the Naga-struggle had already gained momentum much before India became free from the British yoke. The Naga National Council (NNC) FORMED AT Wokha in 1946, became the sole voice of the Nagas. The struggle continued well after 1947, because the Nagas being simple, free spirited and valiant people, valued their freedom more than anything else. Now, as the British were no longer there ,the major players were the NNC and the Government of  India. The whose issue became a fiercely political one and though both the sides generally wanted to resolve it, no one actually knew in whose court the ball was !

SOUL OF ARTICLE 371A in the Constitution of India has its own history through series of political maneuvering and development; first in 1947 and then in 1960.

Travelling to the memory lane through a series of events and non-event, the following pictures emerges; a picture that seemed a “picture-perfect” , which at the time both sides agreed to obey in letter and spirit. So the first attempt was the Nine Point Agreement of 1947 between the NNC and  Shri Akbar Hydari, the Governor of Assam, who was acting on behalf of the Government of India. As the name suggests, the Agreement stipulated 9-points in the Agreement, the mandatory provision being- “The Governor of Assam, as the agent of the Union of India, will have a special responsibility  for a period of ten years to ensure the due observance of the this Agreement; at the end of this period the Naga National Council will be asked whether they require the above agreement to be extended for a further period or a new agreement regarding the future of the Naga people arrived at.”

This Agreement , popularly known as the Akbar Hydari Agreement, seemed to be like  a toothless tiger as it could not be implemented because of the difference in interpretation of Clause-9. Each side had his own way of interpreting things which the other side utterly disliked or so it seemed. However, one of the most important points in this Agreement which among all others except Clause-9 was agreed upon by the Governor of Assam as the Representative of the Government of India was :- “…that land with all its resources in the Naga hills should be alienated to a non-Naga without the consent of the Naga National Council“ This was later incorporated in the 16=Point Agreement of 1960 at Clause-7. The phrase “all resources” includes all minerals and mineral resources including petroleum and its bye-products.

Perhaps, I am the lone surviving signatory to the 16-Point Agreement of 1960, between the Government of India and the representatives of the Naga Peoples Convention and as Joint Secretary  of the NPC, I strongly feel that I have to speak out and clarify the content and spirit of this provision. This formal agreement between the Government of India and the representatives of the Naga Peoples  Convention is a  Political agreement duly signed by both the parties. It should not be construed as a mundane memorandum of understanding. Secondly, while signing this agreement, there was no controversy whatsoever about Clause 7 of the 16^th Point Agreement. All points including land and its resources were thoroughly discussed and deliberated by members of both the parties. The Agreement is self-evident that the signatories to the agreement form both sides, had fully recognized and clearly understood that land and its resources covers all minerals including petroleum and its bye-products.

Another special feature of the state of Nagaland is that recognizing the uniqueness of Naga political history, regardless of the smallness of the area and population, a separate state had to be created on the basis of the 16^th Point memorandum. To give effect to this agreement, the State of Nagaland Act 1962 for the formation of a new state was passed by both the Houses of Parliament in 1962. Durga Das Basu, one of the luminaries of Constitutional expert commented on Article 371A. “ All matters are peculiar to the proposed State of Nagaland, provisions with respect thereto has to be made itself. A separate Act , viz the state of Nagaland Act 1962 for formation of the new state relatable to Act 3 was also simultaneously passed in the Constitution.”

Secondly, let me once and for all clear the clouds of doubt from the doubting Thomas that while signing this Agreement, there was “ absolutely”- and I repeat “ absolutely”- no controversy or difference of opinion regarding Clause-7 of the 16^th Point Agreement. I am as certain today over this as I was in 1960 as a porod signatory and witness to the historic moment. Every one present that day in 1960 was certain that the Phrase, “ land and its resources” had one meaning only and that was , “ it covers all minerals and mineral resources, including petroleum and its bye-products.”

Thirdly, purely for the sake of information as well as history, this political agreement became safe  and sound edifice on which the separate state of Nagaland was created. It became the 16^th state of the Union of India. Fourthly, and most importantly, all the points agree upon by both the parties were duly incorporated in the Constitution of India.

BURSTING THE BUBBLE OF MISCONCEPTIONS

As the events that unfolded after the formation of the Naga National Council in 1946 have shown us, the Naga political issue cannot be equated with other issues in the country because of the following special features pertaining to Nagaland.

• Nagaland was created through a political Agreement, whereas, the other states of the country were constituted on linguistic basis as recommended by the State Organization Committee. The Naga people had been demanding independent Nagaland , and therefore as the minimum demand, the Naga Peoples Convention prepared the 16-Points Memorandum to be the basis of negotiation for creation of a full-fledged state within the Indian Union.
• It should be noted that Article 371 (A)  is the soul of the 16-Point Agreement, in which it is stated without any ambiguity that “ land and its resources” means all minerals including petroleum and its bye-products. While drafting the Sixteen Point Memorandum, the Drafting Committee had also carefully examined the letter and spirit of Clause -4 of the Nine Point Agreement of 1947.
• It should be noted that the 16-Point Agreement is a bilateral agreement between the Naga Peoples Convention and the Government of India. All the points which had been mutually agreed at the time of the agreement should not be raised and misinterpreted after the passage of  63 years. As far as the people of Nagaland is concerned and also the letter and the spirit of the 16-Point Agreement, is concerned Article 371 (A) covers land and all its resources. Nothing less and nothing more. concerned Article 371(A) sub-clause

Constitutional Position

ARTICLE 371-A OF THE CONSTITUTION OF INDIA; EFFECT AND IMPLICATIONS THEREOF:

1. Article 371A  was inserted into the Constitution of India ( Thirteenth Amendment) Act, 1962 with effect from 01.12.1963 on account of certain historical necessities and was based on an agreement reached by the Government of India with the Naga Peoples Convention. Article 371A is also expressly stated to be “Special provision with respect to the state of Nagaland.”
2. Article 371A(1) begins with a “ non-obstante” provision to the effect “ “notwithstanding anything in this Constitution” Art.371A(1) (A) further stipulates and mandates that no Act of Parliament in respect of:- (iv) ownership and transfer of land and its resources, shall apply to the state of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.”

• As a consequence of such a supervening non-obstante provision, as an integral part of Art. 371A ITSELF, NO Act of Parliament in respect unless the state  of ownership and transfer  of land and its resources shall apply to the state of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.
• The consequence of such a provision as an integral part of the Constitution of India would inevitably be that any Act of Parliament in respect of ownership and transfer of land and its resources shall apply to the state of Nagaland only when the  Legislative Assembly of Nagaland by a resolution so decides. It may be noticed that the provision expressly “ notwithstanding anything in the Constitution” and would, therefore, inter alia prevail over law-making power entrusted to the Parliament relating to inherent/imbedded in land.”
• Art.371A (1)(IV) expressly relates to “ ownership and transfer of land and its resources”.  It further mandates that any Act of the Parliament in respect of the above would be applicable to the state of Nagaland only when the Legislative Assembly of Nagaland by a resolution so decides. The expression “its” qualifying the word “ resources” could be ascribed a wider meaning all “ resources” of the state of Nagaland.  In view of the fact that Art.371A is a “ Special” provision and is a deviation from and is a restriction and fetter on the fields of legislation under the Entries in List 1 or List III of the Schedule VII to the Constitution of India, it may be prudent and reasonable to ascribe the meaning of the expression “ resources” to those linked with, emanating from the inherent/ imbedded in “land“.

On the above reasoning, the matters enumerated in Art.371A(1) (iv) would at least mean anything in respect of “ownership of land”, “transfer of land”, “ownership of the resources linked with, emanating from and inherent/imbedded in land:” and “transfer of such resources of the land.”: These would squarely fall within the ambit and scope of this exclusive domain requiring a resolution of the Legislative Assembly of Nagaland to make any laws in respect of any of the above made by the Parliament to be “applicable” to the State of Nagaland.

• The present analysis is limited to the ownership of the resources of land and the transfer of the resources of the land. Needless to say that “land” as such stands covered by the first part of this provision. The expression “resources” would mean resources relatable to land, emanating from land and inherent / imbedded in land. In this context, it may be noticed that the legislative field of Parliament are enumerated in the Entries in List I of Schedule VII of the Constitution of India. Some Entries in List I of Schedule VII to the Constitution of India empower the Parliament to legislate for certain purposes on some oF the matters covered by some of the Entries in List II of Schedule VII to the Constitution of India assigned to the State Legislatures. For example, the Parliament has promulgated certain laws relating to mines and minerals, petroleum and related products and other such matters by virtue of the provisions of List-I of Schedule-VII to the Constitution of India. Some of these Acts eclipse the power of the State Legislature by “occupying” that field of legislation (available to the State Legislature) because some of the Entries in List II of Schedule VII to the Constitution of India like that relating to mines and minerals are subject to the extent of any law made in Entry 54 List I of Schedule VII to the Constitution of India. In such cases the State Legislature is denuded of its power by virtue of the provisions of the Constitution of India itself. For example Entry 24 of List II Schedule VII to the Constitution of India is subjected to Entry 54 of List I of Schedule VII of the Constitution of India. List III of Schedule VII to the Constitution of India confers concurrent fields of legislation on the Union Parliament and State Legislatures.
• However, in the context of Art. 371A, the situation is different. Notwithstanding anything in the Constitution of India, “any Act of Parliament” in respect of ownership and transfer of land and its resources would not ipso facto and per se apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides. This is expressly a special provision (as the heading of the Article itself indicates) to safeguard and protect the interest of the State / people of Nagaland. The historical origin and foundation of this is clause 7 of the Agreement reached by Government of India with Naga Peoples  Convention. The Constitution of India was amended to effectuate the same. While amending the Constitution of India, and inserting Art.371A, it was expressly provided in this specific and special provision that “notwithstanding anything in this Constitution”, and Act of Parliament in respect of ownership and transfer of land and its resources to be operative in applicable to the State of Nagaland would require a resolution to that effect by the Legislative Assembly of Nagaland.
• In this context, it may be noticed that a mineral, as judicially defined, would mean an inorganic substance found either on or in the earth which may be garnered and exploited for profit. (See V.P. Pithupitchai Vs. Special Secretary, Government of Tamil Nadu (2003) 9 SCC 534). Mineral resources means all non-living, non-renewable resources, including fossils, fuels, metallic and non-metallic metals (See Convention on the Regulation of Antarctic Mineral Resources Activities (1998) : Art. 1(6). Thus resources of land would include  all forms of resources standing on, emanating from and inherent/ imbedded in the concerned land.

It is also to be noticed  that Nagaland was created through a political agreement unlike the other States which were a political agreement unlike the other States which were constituted on linguistic basis on the recommendation of the State Organization committee. The Naga people had been demanding independent Nagaland, and therefore as the minimum demand, the Naga Peoples Convention prepared the 16 Point Memorandum to be the basis of negotiation for creation of a full-fledged State of Nagaland within Indian Union. Article 371A(1)(iv) is to be read with Clause 4, Nine Point Agreement of 1947 with Akbar Hydari, Governor of Assam who represented Government of India. The interpretation of the provisions of the provision of Article 371A has to be made in the context of the stipulations in the Agreement, the specific and categorical language used in Art. 371A and its contents are to be purposive and effective. To reiterate, it is apparent that with this object in view, Art.371(A) begins with the expression “Notwithstanding anything in this Constitution” and the same has to have its meaningful and purposive effect.