The Issue is For Article 371A, Not Against Women’s Election

Vaprumu Demo

If you see thing as it actually is, you will see it that way and if you want to see the way you want it, you will also see it that way. What 9 or 8 or 7 actually is, you from opposite side can see it as 6 or B or L and draw your conclusion from that angle. In this manner Art 371A is being viewed by people from different perspective, that within legal fraternity, within successive government and unavoidably so within laypersons. Art 371A is no less a mini-constitution of Nagaland, therefore this article essentially should be viewed from Naga perspective rather than from un-Naga or non-Naga perspective. Why, because in prevailing situation what may be legally right may turn to be socially, politically wrong for us.

One does not need to be a legal man/woman to understand the content and spirit of Article 371A, for the fact that this very article is the upshot of a political agreement and therefore it cannot and should not be interpreted strictly in legal term without also equally considering the historical and political connection, then and now. Art 371A, particularly (I) (a) (i) to (iv) is one amongst what Naga leaders wanted from day one of negotiation and accordingly inserted and protected by the Constitution; neither is it gifted to us nor is it general provision for all. After 50 years of adoption and successful implementation, it will be very stupid and suicidal for present or future generation to doubt the intent of the article or the author. The other way round, this article is a constitutional restriction put against potential constitutional or Parliament’s infringement on the given supremacy of Art 371A. And until and unless Nagaland Assembly opens its door, no constitutional provision in the like of Art 243T or act of Parliament or court can forcibly come inside. But problem of current nature started when successive Assembly oft and on opened the sealed door without visualizing or least consideration of dangerous intrusive forces. Still bigger problem is false assumption and submission that there is a higher authority above State Assembly to decide or act on the special provisions otherwise guaranteed by Art 371A.

For quite some time women activists & supporters are questioning their counterparts how and in what manner 33% reservation for women is infringing Art 371A and alongwith state government they are claiming that Art 243T is a constitutional provision, for that matter a constitutional right guaranteed to all women. Fine. Indeed whether or not women participation in elective bodies violates customary law needs debate but I do not believe in such violation. Nonetheless, whether or not 33% reservation of Art 243T infringes the special provision of Art 371A is highly questionable and I, on the contrary believe there is such infringement for reasons mentioned below. My argument is based on the contention made by JACWR/NMA and confusion created by successive Assembly and state government.

1. NMA’s contention that “reservation for women in local and urban decision making bodies of the Panchayati Raj and Municipalities has been guaranteed through the 73^rd and 74^th Amendment of the Indian Constitution which supersedes Article  371(a)” (Ref: Memorandum submitted to CM on 19/3/12) also became JACWR’s main contention in their Special Leave Petition.  Until and unless JACWR/NMA justify how exactly 73^rd and 74^th.. supersede or override Art 371A, how can they possibly refute the charge that 33% reservation of Art 243T is infringing Art 371A?
2. Successive State Assembly adopted resolution and again revoked same resolution, respectively on 22 Sept. 2012 and on 24 Nov 2016 on conflicting ground. Yet state government is not in a position to clarify, apart from explaining the sequence, how exactly 33% reservation of Art 243T infringed Art 371A by 2012 and then how exactly the former no longer infringes the latter by 2016. Until and unless state government logically and independently resolves this position of infringement or not-infringement, how can state government in the midst of this confusion, decide to seek extra constitutional ordinance at the risk of endangering Art 371A?

Any educated person should be able to understand the meaning of ‘Notwithstanding’, the first word used in Art 371A; else synonymous words are nevertheless, however, even so, still etc. A Dictionary defines the word “The particular thing mentioned has no effect on the situation that you are describing although people might expect it to”. Rephrasing it to our context, ‘the particular thing mentioned (Art 243T) has no effect on the situation that you are describing (special provision of Art 371A) although people might expect it to’ (I repeat, although people might expect it to). Hence, “Notwithstanding anything in this Constitution” implies “Notwithstanding Art 243T in this Constitution”. Also it does not say, Notwithstanding anything IN THIS ARTICLE; it says, Notwithstanding anything IN THIS CONSTITUTION (the constitution in entirety, including Art 243T). Special Provision of Art 371A cannot be interpreted in the context of general provision of Art 243T or the like; rather the latter has to be interpreted in the context of the former. Where there is clash of provision, definitely special provision will prevail over common provision, guaranteed provision over general provision. That is a common sense Assembly, state government and we, the people should be able to apply in mind and in act.

No act of Parliament in respect of- (i) (ii), (iii) (iv) “shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides” need no further explanation. UNLESS Assembly adopt or pass a resolution, no act/law of Parliament relating to or infringing special provisions mentioned under Art 371A will be effective in the State. And UNLESS Assembly adopt or pass such resolution, court cannot interpret WHAT IS NOT THERE.  Court comes into picture once a resolution or act is challenged. In present circumstances whether resolution was adopted earlier, revoked later or revived in future, Assembly has opened Pandora box for the court to decide the merit or demerit of the case. Maybe the worst is yet to come; maybe JACWR/NMA can save it in time. As for Assembly so long as resolution is not adopted or resolution is passed against, we are safe but when resolution is adopted in favour or protective resolution like that of 22 Sept 2012 is revoked, we are unsafe.

As for ULB, Seventh Scheduled List II – State List, No. 5 is very clear. Local government is a subject matter of state government whereby the constitution and powers of municipal corporations/bodies and other local authorities for the purpose of local self-government or village administration are left to the state government. Given this fact state government is also empowered over ULB election process, thus last date of nomination for the election was extended for another two days and eventually the whole election process was also declared null and void on polling day itself.  To this extend the competency and authority of state government is not questioned but the decision to approach central government for exemption from Part IXA is a dangerous venture from our side and also a golden opportunity for adversaries far and near, to demand repeal of provision like 370 or 371A.

We also have understanding problem. Everybody talks of Art 371A but very few know about it and many feel that others know much better about the special provision than we do. Apparently with this assumption some people including elected members, influential members and interest groups ventured elsewhere seeking reverse opinion, support and even verdict precisely to rationalize or legitimize the interest of smaller section over the interest of larger Naga. In other words, how Art 371A should not become an obstruction to sectional interest. So JACWR/NMA remains stuck to their guns that Art 243 & 243T supersede/override Art 371A and state government continues to claim that Art 243T is mandatory and therefore revocation of 2012 Assembly Resolution was the best thing done to protect Art 371A.

People at large certainly do not know much but at least they do understand that Art 371A cannot be superseded by 33% reservation of Art 243T. The people are also not so naive to believe that 2012 protective resolution was removed in order to protect Art 371A. In disregard of strong constitutional provision Assembly has succumbed to interpretation of its own power by other authority and in disregard of clear provision in Seventh Scheduled state government has readied to accept extra constitutional ordinance from above. Therefore, state tribal hohos are out in the street to secure Art 371A from being challenged by JACWR/NMA in court and bartered left and right by state government. If government can be so adamant and arrogant as it is today, it should similarly be courageous enough to confront any court to defend our guaranteed rights. Jallikattu uprising in Tamil Nadu should be eye opener to everyone; Tamilian say, ‘tradition supreme over court interpretation’. And they did won. Theirs is a game, ours is everything. So what problem is there for Naga people?

Finally, it is most unfortunate that NPF is desperately trying to politicise the people’s protest as driven by some vested interest. Actually what can be more ridiculous than this suspicion and allegation, or are they trying to insinuate that all state tribal hoho leaders and members are compromised and have abandoned NPF for good? Their respective tribal body is on protest and some NPF leaders and workers are openly questioning and challenging their Hoho’s decision every day, as if they are aliens living outside their tribal community.  The way we see thing now, tribal hohos are representing the whole- Art 371A while NPF, in support of government is representing the part- Art 243T and exactly like present constitutional clash NPF is trying to supersede tribal hohos. It is interesting, rather hilarious that NPF which used to cockcrow Naga nationalism and regionalism in the past is openly cockcrowing nationalism in Indian context and constitutionalism today, actually every morning.

Somebody sarcastically mentioned ‘never underestimate the power of stupid people in large groups’. If so, it is better to be stupid and save your birthright than be smart and sell your birthright. And if not today, tomorrow government will certainly witness that the power of the people is stronger than the people in power. So it may be best to accept reality before committing further futile sacrifice than after committing futile sacrifice.