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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 The phrase “ includes all minerals and mineral resources
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 16th 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 16th 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 16th 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 16th 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.
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.
ARTICLE 371-A OF THE CONSTITUTION OF INDIA; EFFECT AND IMPLICATIONS THEREOF:
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.
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.