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Article 371A(1) commences with a non-obstante provision i.e notwithstanding anything in the Constitution. Article 371A(1)(b) reposes the special responsibility on the Governor of Nagaland regarding the action to be taken in matters relating to law and order by exercise of individual judgement. The condition precedent for reposition and exercise of individual judgement. The conditions precedent for reposition and exercise of the power by the governor of Nagaland are-
1. Internal disturbances occurring in the Naga Hills-Tuensang area immediately before the formation of the state of Nagaland continue therein or any part thereof and (a) the governor is obliged to consult the council of Ministers but is entitled to exercise his individual judgement as to the action to be taken. Such an arrangement of exercise of power by the governor would continue to subsist till the President of India exercises powers as per the second proviso to Article 371A (1) (b). Under this proviso , President on receipt of a report from the Governor or otherwise, is to be satisfied that it is no longer necessary for the governor to have the special responsibility with respect to law and order in the state of Nagaland and on such a satisfaction, the President may by order direct that the governor shall cease to have such responsibility with effect from such date, as may be specified in the order.
2. The internal disturbances mentioned in this provision in the Constitution of India relate those immediately before the formation of the State of Nagaland and such disturbances are continuing therein or any part thereof. The President of India has not exercised the powers in terms of the second proviso to Article 371A (1)(b). Consequently, the substantive part of Article 371A (1) (b) continues to be operative as a constitutional mandate.
3. The Governor, as per Article 166(3) of the constitution of India, is empowered to make rules for the more convenient transaction of business of the government of the state. But such rules ( commonly referred to as the Rules of Business of the government) would not govern matters or business with respect to which the governor is by or under the constitution required to act in his discretion. This prescription would attract provisions of Article 371A (1) (b) and additionally under Article 371A being “ Notwithstanding anything in the Constitution” any provision in the Rules of Business cannot override the constitutional provisions in this regard under Article 371A (1) (b). The deployment of man power and personnel for maintenance of law and order in the integral part of the expression ‘ action to be taken in matters relating to law and order’. Such personnel constitute the instrumentality of the state for maintenance of law and order. Any rule framed by the governor for conduct of business under Article 166 of the constitution would have to yield to and subjugate itself to the overriding mandatory prescriptions of Article 371A (1) (b).
4. Consequently, till any order are issued in terms of second proviso to Article 371A (1) (b) by the President of India there can not be a prescription in rules governing the conduct of business contrary or repugnant to the supervening mandate of Art.371A (1) (b). Orders relating to appointment/ deployment of higher posts involving discharge of duty relating to law and order in the state would require the approval of the governor of Nagaland in his individual judgement after consulting the council of ministers. It may be appreciated that the non-obstante provision of Art.371A in effect debars any abdication of this power or a complete delegation of this power and the same will continue to be governed by the individual judgement of the governor after consulting the council of ministers in terms of the overriding mandate of Article 371A of the constitution of India.
S.C.Jamir.
Former CM &Governor.