Which Comes First ? - Eastern Mirror
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Which Comes First ?

By The Editorial Team Updated: Oct 24, 2016 12:30 am

The recent statement by a former Additional Advocate General of the State, in other words a legal advisor for the government, that the Cabinet decision cannot supersede the Nagaland Legislative Assembly resolution to conduct elections to urban local bodies will be spanner in the works for the present government that. The decision was made on 10th August, 2016 at a Cabinet meeting held at the Chief Minister’s Office. Going by the statements made by different personalities in the present government, the issue of money not being released from the centre due to the non-conduct of elections looks more like the driving force for the hurried decision. The issue is contentious because the cabinet decision involves the conduct of elections for municipal councils and town councils with 33 percent reservation for women. that is opposed by the civil societies led by Naga Hoho.

The Nagaland Municipal Act was enacted in 2001 during the time of the then Congress government in the state. In 2006 it was amended through The Nagaland Municipal (First Amendment) Act, 2006 and came into effect on August 30, 2006. Even though the elections for the urban local bodies were due by January 2010 the government did not conduct the elections after taking note of the various representations from the civil societies namely the Naga Hoho and the Eastern Naga Peoples’ Organisation against women reservation based on Naga customary practices, to maintain harmony in the state with the reconciliation and the peace process in motion then and the possibility that the elections would create unnecessary tensions among groups and public disharmony. The Elections due in January 2010 were indefinitely postponed.

In 2011, a case was filed by the Naga Mothers Association in the Gauhati High Court Kohima Bench against the State of Nagaland for the indefinite postponement of the elections to the urban local bodies. The judgement ruled that the Respondents (State of Nagaland) were directed to hold the election to the Municipal Councils and Town Councils and to complete the entire process by January 20, 2012. The state then filed a writ appeal in the Gauhati High Court Principal seat against the earlier judgement and it ruled in favour of the state on July 31, 2012. Thereafter the matter has now reached the Supreme Court and the judgement is still pending.

In the meantime a select committee of the Nagaland Legislative Assembly was constituted to look into the reservation of seats for women in municipal and town councils. The recommendations of the select committee was finally moved in the assembly on September 22, 2012 wherein it stated that the 33% reservation of seats for women impinges/infringes on the social and customary practices of the Nagas, the safeguards of which is enshrined in Article 371(A) of the Constitution of India. The committee also recommended the assembly to legislate own laws and make amendments accordingly.

However, while on one hand the judgement of the Supreme Court is still awaited the Cabinet decision of August 10, 2016 that negates or supersedes its own Assembly resolution has caught the attention of the legal pundits and also the lawmakers alike. Article 371(A) ensures that no Act of Parliament in respect of religious or social practices of the Nagas; Naga customary law and procedure; administration of civil and criminal justice involving decisions according to Naga customary law; and 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. This ensures that the said article prevails over all the other provisions in the Constitution that pertains to those matters listed in the article.

The issue now has become one that is not only about women reservation in ULBs because it is feared that it will set in motion two unprecedented events. Firstly, even though the state was quite late to resolve on the issue of reservation nonetheless whether the reservation of seats for women is against the Naga customary practices or not is already decided by the Assembly resolution of September 22, 2012 as empowered by Article 371(A). At such a juncture if the ruling of the Supreme Court on the present case filed by the NMA is against the state then it will be opposed to Article 371(A). Secondly, if an Assembly Resolution can be just set aside by a Cabinet decision as the one of August 10, 2016 then it will also set the wrong precedence in the days to come as it nullifies the very provisions that Article371(A) empowered the Nagaland Legislative Assembly. With another case in the form of a PIL filed by the Lotha Hoho against certain features of the current oil exploration policy also pending, the government have to take a very informed and a wise decision.

By The Editorial Team Updated: Oct 24, 2016 12:30:13 am
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