Understanding Article 371 (A): Historical wrongs versus political/legal rights

Our Correspondent
Kohima, Sep. 30 (EMN): Article 371 (A) of the Constitution of India, which grants special provisions to the state of Nagaland, is one of the most talked about yet the least understood subject in Nagaland. As put by one lawyer: “It is one of the most exploited, manipulated, twisted and abused Articles known in Nagaland.”
In a bid to understand the contents of Article 371 (A), the Kohima Sumi Students’ Union organised a panel discussion on said provision, with legal experts and academicians as resource persons. The programme was held at Mount Olive College auditorium on Saturday.
Academician, Kekhrie Yhome, who is specialised in History of Thoughts and Contemporary Continental Thought System, said Article 371 (A) is closely tied to the Naga political movement – complicit to the creation of Nagaland state under the 13th Constitutional Amendment Act in 1962.
With the ongoing framework agreement, and the invitation of the six Naga political groups for talks with New Delhi, he said it is a matter of concern for all to see where the future of Article 371 (A) lies.
While pointing out that Nagaland (along with Jammu and Kashmir) is the only other Indian state that enjoys exclusive constitutional rights outside the purview of Parliament of India, Yhome, said Article 371 (A) is like a mini-Constitution.
However, given the experiences of J&K as submitted by a committee report initiated by Farooq Abdullah in 1999 where the Constitution of J&K has been severely stripped of its powers, Yhome expressed concern likewise whether, Article 371 (A) will have any legal or constitutional powers since it will hugely redefine Naga rights over their land and resources and over protection of cultural practices.
Though there has been many endless debates and valorisation on Article 371 (A), he observed that the one issue that remains pertinent is that ‘it has never been tried’ with no legal precedence apart from the many legal interpretations.
He also mentioned on the conflict arising out of Nagaland Petroleum & Natural Gas Regulations and Rules 2012 (NP&NGR Rules 2012), which is seen as directly in conflict with entry 53 and 54 of List I under the VII Schedule of the Constitution of India. In other words, he said the legal mandate given in Article 371 (A) is now being contested by the government of India as inapplicable. “This ongoing constitutional conflict also represents centre-state relations. India has never had any real federalism- whether it is quasi, symmetrical or asymmetrical federalism.”
Yhome said the Article 371 (A) came about when India hardly knew the Nagas and with India in a stable and strong position as a regional power too, he stated ‘it therefore remains a matter of general concern to see where the future of Article 371 (A) is heading.’
“Can historical wrongs be translated or negotiated as a political and legal right? Where Nagas have fought with guns in the past- it is now imperative to relate a new struggle where our right over our land and resources is protected in the future,” stated Yhome.
Speaking on ‘ownership and transfer of land and its resources’ under Article 371 (A), Principal of City Law College, Dimapur, P Leonard Aier explained the literal meaning of ‘Notwithstanding anything in this Constitution’ as a non-obstante clause which Parliament adopted as a legislative device to give overriding powers to Article 371 (A) over contrary provisions that may be found in the Constitution of India in respect of ownership and transfer of land and its resources in the State of Nagaland.
Hence, he said Article 371 (A) gives special rights to the Nagas and special provisions where Nagas have been given absolute authority over its land and resources.
Aier went on to state that ‘if a society wants to be progressive then that progress of the society has to come from the economy health of the state of which we are members of the citizens’ and at the same cautioned against the exploitation of the natural resources to such an extent that the benefits which we get are more harmful to the society.
He recalled the history where many indigenous people in the world have lost their rights over their land and resources because they belonged to the ‘minorities’ where the majorities have deprived the minorities to ancestral rights to land and resources.
The students were cautioned to remain vigil on the fact that ‘even if our natural resources are exploited whether it benefits our people or if it benefits people who are not from our land.’
As a food for thought, he asked the students to ponder on ‘what would happen to the Nagas if the Government of India decides to repeal Article 371 (A)?’
Assistant Professor, Kohima Law College, T Limanochet Jamir also spoke on the religious and social practices of the Nagas.
‘Legal professionals misled Nagas’
Speaking as one of the resource persons, Advocate Gauhati High Court, Kohima Bench, Zhekheli Zhimomi has described Article 371 (A) as one of the most ‘exploited, manipulated, twisted and abused’ Article in Nagaland primarily because of women reservation issue.
She candidly said that Article 371 (A) has been exploited in the state in such a way that Naga men folk have become experts more than the legal luminaries by twisting and misinterpretation the same.
Referring to the ULB fiasco in the early part of the year, Zhimomi admitted that ‘it was the legal professionals who misled the Nagas’ and that as per the advice of the advocates, all the tribal leaders started protesting that women reservation is not applicable under this Article.
Although many experts have given their opinions and advocates will never admit their mistakes as said by Zhimomi, she asserted that if Nagas doesn’t want women reservation that is provided under the Constitution of India than Article 243T has to be done away with.
Highlighting in brief the provisions enshrined under Art. 243T on seats reservation for women, Zhimomi maintained if Nagas wants Municipal Act than they have to implement what is enshrined in the Constitution of India, if not to do away with Article 243T in general.