Friday, May 7, 2021
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Can Art 371(A) survive under Pan Naga Hoho(PNH)?

It is reliably learnt that the NSCN(IM) has proposed the establishment of Pan Naga Hoho (PNH) as a major agenda in its negotiation with the GoI. So far as I know the purpose of the PNH is of a cultural organisation of all the Nagas irrespective of the States they do inhabit.
How PNH can be constituted? In my speculation, PNH will be composed of the tribal representatives of all the Naga tribes. It will be the proportionate tribal represented body irrespective of the size of the population of each tribe. Eventually it will be the proportionately disproportionate Hoho for the fact that when a tribe has just 15000 population it will have equal voting right with that of a tribe having 2/3 lakh population. Therefore, it will be the replica of the Naga ‘Haha’ if not worst.
The legal powers of PNH: According to Hebron: 21 September, 2019…Part 11 by Mr. Khekiye K. Sema, IAS (Rtd) published on 5.10.2019, the PNH will be a supra ‘Statuary’ Hoho as per the Competency Clause of NSCN(IM). The meaning of ‘Statuary’ (noun) according to my Franklin Dictionary is the art of making statues. In other words, PNH will be a super body to make laws and rules as I understand the implication if at all the PNH is made to be a component of the agreement. When the PNH is empowered to make new laws, it will have equal power to amend the existing laws. Secondly, the PNH is to have ‘advisory authority over Education and Development matters’ as disclosed. If at all, in the agreement the PNH is equipped with what are desired, what subject that relates to the welfare of the State of Nagaland will not be placed under the supra PNH? Nothing else as for Nagaland will be left outside the purview of the PNH when the PNH will have advisory role on education and Developments. Literally speaking, the State Govt. of Nagaland will then become the secondary authority to PNH for the justification that the GoI has approved the formation of PNH by which it will claim that it has the legal sanction from Parliament of India.
Funding: The PNH is going to be funded by GoI when approved. In the context of the Nagas, money is power. The PNH will therefore eventually emerge to be the power house and the centre of attraction of all hue. The Nagas of Nagaland in particular will flock to be the sycophant of PNH at the cost of legal protective and indigenous rights.
The Inter-State Legal Structure: The PNH will become the Inter-State Legal Authority which will exercise its extraordinary role of administering the affairs of all the Naga inhabited areas in not less than 4 States. Yet, without land integration of the Naga inhabited areas, it is doubtful about the cooperation of those States neighbouring Nagaland to the proposed PNH. It becomes obvious for the fact that a State cannot have two parallel authorities to run its affairs, and therefore it is very unlikely that other States neighbouring Nagaland will welcome the PNH. When so, the PMH will confine to the State of Nagaland. Ultimately, the affairs of the State of Nagaland will be handled by all the Nagas from Manipur, Arunachal Pradesh, Assam along with the indigenous Nagas of Nagaland without land integration.
The legal implication of the Inter-State Legal Structure: Firstly, let me once again quote the Art 371(A) of the Constitution of India. (1) Notwithstanding anything in this Constitution,-(a) no act of Parliament in respect of – (i) religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) 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; ….Thus, we all know that Art 371(A) is the special provision exclusively provided for the State of Nagaland since it gave birth to Nagaland Statehood. The article is so sacred and its sanctity is legally insulated as regards to the aforementioned clauses from undue interferences from the highest authority as Parliament without the consent of NLA.
Although I am a layman, what I understand the PNH will have adverse impacts on the vital protective Art 371(A) are: a) The Inter-State body of PNH will be given powers to directly intervene and interfere in all those aspects of life of the Nagas of Nagaland as enshrined in those clauses to which the Indian Parliament cannot have direct access. The few local lawyers with whom I interacted have the opinion that under such Inter-State Structure, the Art 371(A) will become redundant. b) That the Art 371(A) will get diluted under the weight of direct interferences of PNH. c) That the interference of non-stakeholders in the exclusive constitutional provisions of the Art 371(A) will be the basis for the rest of the outside authorities to degrade and undermine the provision. d) That when the Art 370, the umbilical cord for Jammu & Kashmir, was severed from the Constitution of India, to reduce the Statehood of J&K to third status as the two Union Territories became handy for Indian Parliaments. When the Art 371(A) is diluted by PNH, the sacredness and its sanctity of the provision will evaporate, the legal provision will become namesake and ultimately the Statehood of Nagaland may face the fate of J&K. When we are in winter, will summer be far away?
The questions: Firstly, any legal provision enshrined in the Constitution of India cannot be undermined and infringed by any authority under any circumstances. In the wisdom of Indian Parliament, if any such constitutional provision is found irrelevant or obsolete it can be amended under Art 368 by two third majority in both Houses voting for the same. Without such amendment to the Art 371(A), and having already assured that this Art will not be affected in any manner by GoI, how the Union Govt. adopts such measure by which the very Art 371(A) will be both directly and indirectly infringed? Secondly, when the Naga integration is kept nonnegotiable in the ongoing negotiations, how relevant and constitutional for GoI to permit the formation of PNH which will function as Inter-State authority? Thirdly, will I be too apprehensive that the GoI finds it convenient to bring the Uniform Civil Code into effect in the camouflage of fulfilling the aspiration of the Nagas? Fourthly, the Honourable Governor of Nagaland is optimistic and has challenged the 2 million citizens of Nagaland to rebuild the ‘new Nagaland free from fear of gun and corruption,…..’ Will the ‘new Nagaland’ remain under the Art 371(A) or will it be transformed into ordinary State of Nagaland bereft of Art 371(A) under PNH? Fifthly, is there no better option to build ‘new Nagaland’ without demolishing the Art 371(A)? Sixthly, what is the standpoint of JLF on the issue of PNH?
The assertions: The Art 371(A) was not ordinary article but was born out of political agreement between the Nagas and the GoI in 1960. This Art was never created for any kind of mortgage and it cannot be allowed so. More so, when the two groups of the Naga negotiators are not in a position to achieve Naga sovereignty and integration, and for which none can blame the negotiators for we are all equally responsible. Whereas, though Naga sovereignty and integration are the first best, the Art 371(A) is the second best. I would therefore question the kind of patriotism and nationalism of NSCN(IM) as to why the Art 371(A) be considered the eyesore? When you failed to fetch the first best, do not hate the second best.
The Nagas as a whole definitely need a proper common platform sooner or later. However, such platform has to be properly organised transparently and not in the manner the existing Naga ‘Haha’ was constituted. Nevertheless, the Pan Naga Hoho cannot be formed at the cost of the Art 371(A) and the Statehood of Nagaland.
wish my perception of the proposed PNH be proved wrong. When my apprehensions are proved incorrect, the constitutional status of Nagaland will remain and that is what I stand for.
Z. Lohe

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