The Eastern Mirror should be congratulated for coming out with its own editorial in the February 13, 2017 issue on the whole series of events that started with the intention of holding an election on February 1, 2017 on the 33% reservation for women on urban local bodies (ULBs), and has now led the state of Nagaland to the precipice of becoming a failed state.
I find, however, a number of points in the editorial wrong. I will give the quotes I find erroneous and then respond to each of them.
“This resulted in the Nagaland Legislative Assembly proactively revoking its earlier Assembly resolution [of September 12, 2012, ‘that set aside the applicability of Part IX A of the constitution in the state’]. It sounds like a sell-out because the Assembly resolution of the Nagaland Legislative Assembly based on Article 371 (A) cannot be contested in any court of law, if it is the contrary then it is the duty of the government to defend it. Period.”
The above two sentences make no sense. They are incoherent. First, the state Assembly had a legal right to pass the legislation of September 12, 2012, and it had just as much right to pass legislation reversing its decision. That’s its job. It legislates. The editorial can’t be serious when implies (“sounds like a sell-out”) that there is something legally inappropriate in what it did. If politics were involved in the decision to change its mind, that is the nature of legislatures.
And to say that “Article 371 (A) cannot be contested in any court of law” is exactly not what the JCC and others want. Yes, it does say, “Notwithstanding anything in this Constitution, (a) no Act of Parliament in respect of … religious or social practices … Naga customary law and procedure … administration of civil and criminal justice …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.” (My emphasis, in caps.) In the present case, the Legislative Assembly of Nagaland did, by resolution, agree to apply the federal law requiring 33% reservation for women to Nagaland. It is, as of this moment, the law of Nagaland, even though the Assembly has since passing the resolution declared the election null and void. The reason is simple: the election was cancelled because of illegal and coercive pressure, and resulting violence, of the JCC and its followers, and not a state court in India would find otherwise.
Therefore, the only way to undue a legally passed piece of legislation giving preferences to women on ULBs is to go to court, to argue that the Parliamentary legislation illegally infringes on tribal law and the state legislature overstepped its jurisdiction when it passed such legislation.
Furthermore, even if the resolution were not passed, Part III of the Indian Constituton, “Fundamental rights,” states, at section 13(2), “The State shall make no law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” Section 13(3)(a) states, “’law’ includes any Ordinance, order, bye-law, regulation, notification, custom or usage ….” (My emphasis, using caps.)
The Indian Constitution, section “14. Equality before law. The state shall not deny to any person equality before the law or equal protection of the laws within the territory of India. 15. Prohibition of discrimination on grounds of religion, race, caste, SEX, or place of birth. —-(1) The state shall not discriminate against any citizen on grounds only of religion, race, caste, SEX, place of birth or any of them.” (My emphasis by with use of caps.) Subsection (3) states, “ Nothing in this article shall prevent the State from making any special provision for women and children.” This subsection allows the state to give added protection to women in instances where it is required, for example, where late in pregnancy an employer might be required to provide a chair to a woman who normally stands up for her job. This subsection cannot be used as an excuse to deprive a women the protections of sections 14 and 15, above.
It should be clear from the above, that if the NMA did not withdraw its petition from court, eventually it would have won. If it’s Naga customary law which clearly discriminates in many ways is in conflict with fundamental law treating all citizens equally, customary law will most certainly lose. That is why the state government has sometimes used the argument to give the women the reservation it is asking for, that not to do so will force the issue to court and many other customary laws which are discriminatory (for example, laws of inheritance and land transfer) will be reversed by the courts. The holding of the election was a tactical, and cynical, decision, and the JCC and its followers may regret the day that they stopped the election.
The Assembly has no obligation to defend 371 (A) if it has a basis to believe it is unconstitutional under the Indian Constitution. If the JCC and others think it needs a legal defense, it should go to court and contest the NMA’s petition. It chose not to do so.
The issue of whether the Advocate General or the Nagaland Bar Association has a right to interpret the law in question in relation to section 371 (A), is an academic one, meaningless. Both can state publicly what they think, and if the Advocate General represents the Assembly in the courts, it is his or her view of the section that will represent the state’s view of it. But in the end, the courts will, or should, decide what section 371 (A) covers. The Nagaland Bar Association has no standing in court, no more than any citizen. It may have more education in the law than most citizens, at least that’s the presumption if you are a lawyer, but the opinion itself is worth nothing legally. Period.
I shall put two sentences from different parts of the editorial together because I have the same thing to say about both. “… [T]he government and the proponents of the election to the municipalities seems [sic] to have forgotten one basic trait of the Nagas…. Any threat against their tribe and their identity either real or perceived will be fiercely defended. It is this trait that has kept alive the Naga identity distinct even in this century.” “[T]he ruling party and its various functionaries and divisions have suddenly taken the role of intercessors on one hand and also blaming the civil societies for the vandalism, deaths and injuries. The intention to turn back the clock purely to justify the series of wrong decisions of the government is starkly evident.”
The fundamental issue for me (a retired American lawyer), and it should be the fundamental issue for all Nagas, is not the substantive issue of reservation for women, it is not the passion that the tribes feel for their identity or the sincerity of the JCC and its followers in relation to its view of the actions of the state Assembly. The issue IS how you express these passions and interests.
The only group that went about their business the right way was the NMA, because they respected the rule of law and had tried to win within the law. Everyone else in civil society who followed the lead of the JCC and the tribal hohos chose to break the law and try to win their point on the streets through intimidation and force. Who is responsible for the killings is still undecided, despite the near unanimity of the people that the security services and police are guilty. But a Judicial Investigation Commission has been suggested, with the JCC’s agreement (with certain changes), so it is premature in determining who is responsible for the damages to property and injury and death to people.
But one thing is certain. Bandhs, which started this whole series of events, and which continue now, are against the law. The editorial says that that the state government made “wrong decisions.” I disagree. The government made only one wrong decision. It did not have the will or perhaps also did not have the means, to crush the first bandh, and end the illegal and violent conduct when it first started.
Robert A. Silverstein
rsilverstein@nycap.rr.com
