Monday, April 12, 2021
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Flaws and Flames on Article 371A: A critical Exposition and Observation

L.Moayanger Imchen, Advocate.

A comprehensive study on the working of Article 371A has attained interesting prominence in the recent days. Many people have shared and contributed their scholastic views and opinions through mass media and other electronic means.
I pen this small note on the given subject from academic perspective and interest. It is an admitted fact that in the realm of understanding and interpretation of written statute laws individual opinion invariably varies and differs till it is settled by a decision of the Apex Court of the country. This present write up is of no exception to this universally accepted dictum. Nevertheless in a democratic country like India whose constitutional ideals are firmly rooted in the long arms of rule of law and principles of natural justice the freedom of expression stands so long as it does not offend the procedure established by law. With this understanding, I attempt this small write-up. I know the readers and friends will find more facts and details which this write-up tries to explore and project.
After Nagas took Voluntary Plebiscite on May 16, 1951 under the initiative of legendary Naga leader A.Z.Phizo which was spearheaded by Naga National Council (NNC) from underground jungles the fighting between the Naga Underground and the Indian Military Force becomes very intense and continued brutally since then and in the process cycle of violence, bloodshed and tears continued unabated in Nagaland. During those turbulent times the collective understanding of illiterate and unsophisticated Naga National Council (NNC) volunteers was,”Nagas are not Indians and Nagaland is not Indian Territory. The Nagas are not demanding independence from India and the Naga are not trying to secede from India. The case of Nagaland is a case of aggression. It is war.” (A.Z Phizo). “A state of emergency equivalent to martial law in practise existed in Nagaland since 1956 and all Naga areas were turned into warzones. Horrible events were taken place but very few were known to the outside world.” Ref: Nagas in the Crossroad. (Tajen Ao). “I can well remember how dark were those days when no foreigners were allowed to witness the situation in the early part of 1955 while the whole world was busy in their own affairs, Nagaland was converted into a prison cell.” Ref: Nagaland Church and Politics. (Rev. V.K Nuh).
Under the given horrible and nightmarish situation and times, Naga Peoples Convention (NPC) was formed in 1957. “About 1735 representatives of 16(Sixteen) Tribes of Naga Hills and Tuensang Frontier Agency meet at Kohima from 22 to 26 August 1957 to discuss deliberate and explore all possible means for the early and lasting restoration of peace, unity and harmony in the beleaguered Naga lands. This collective deliberative initiative was ultimately christened as Naga Peoples Convention (NPC).” Ref: Naga Peoples Convention and 16 Point Agreement. (S.C. Jamir).
It is understood that the initiatives of the NPC was outrightly rejected by the Naga undergrounds as they never gave any formal consent or approval to the Draft Memorandum of 16 Points. However, leaders of NPC could steadfastly stirred all tormenting and agitating situations and could enter into an agreement in July 1960 famously known to Nagas as 16 Point Agreement. It is a matter of historical and political record that 16 point agreement is made on the basis of 16 point Draft Memorandum which was unanimously adopted by the representatives of 16(Sixteen) Naga tribes in the 3rd Naga Peoples Convention (NPC) held in Mokokchung town from 22nd to 26th October 1959, which was placed before the Prime Minister of India. The points placed by the Delegates of the Naga Peoples Convention before the Prime Minister on 26th July 1960 was finally recast by the delegation in the discussions held on 27th and 28th July 1960 with the Foreign Secretary Govt. of India. Ref: Legal Opinion and Interpretation of Article 371A(1)(a) of the Constitution of India and related documents, (Govt. of Nagaland Dept. of Justice and Law). A thorough deliberation and debates on the statement and reasons relating to 16 Point Agreement was explained by then Prime Minister Nehru in Lok Sabha it is to be noted that when the 16 point agreement was debated in Lok Sabha the then Prime Minister Nehru has remarked, to quote “if the House (Lok Sabha) approves the 16 Point Agreement it will become a part of the Constitution of India. The 16 Point Agreement will cease if it becomes a part of Indian Constitution.” Unquote. (Ref: Parliamentary Debates). This makes us to understand that only those points which are inserted in Article 371A from 16 Point Agreement are deem to have legal and constitutional validity and the remaining other points are seems to have ceased legal sanctity from the day Article 371A was inserted in the Constitution of India. By all indications it is observed that some points in 16 Point Agreement are yet to be attended to in letter and spirit by both the Govt. of India and Nagaland State.
Article 371A, a special provision with respect to the State of Nagaland was inserted in Part XXI of the Constitution of India by Constitution (13th Amendment) Act, 1962 and in pursuance to 16 Point Agreement, the State of Nagaland as 16th State under Indian Union was created by the State of Nagaland Act, 1962 (Act No. 27 of 1962). It is pertinent to note that Article 371A is intended to be special provision as the very word “Special” is given in the Part XXI of the Indian Constitution itself.
Article 371A. Special provision with respect to the State of Nagaland.
(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 to decides;
Bare reading of Article 371A reveals that no definition or meaning is given with regard to religious, social and customary practice of the Nagas. This is an inherent flaw that creates difficulties and confusion in the practical implementation of letter and spirit of Article 371A. Naga customary laws are multifarious and there is no specific set of religious, social and customary practice for Nagas a whole. As a matter of fact, customary law and procedure even varies from villages to village, not to think of tribe to tribe. Uniform application of customary laws to all the people in the state of Nagaland is next to impossible. This unexplained ambiguity gives unlimited discretion to Govt. of India to interpret Article 371A unilaterally in their own convenience. Further observation on the matter is there is no specific legislative power accorded to the Nagaland Legislative Assembly to legislate with respect to the special provisions of Article 371A. An ample example is a resolution dated 26th July 2010 was passed by the Nagaland Legislative Assembly with regard to ownership and transfer of land and its resources but against this, the Ministry of Home Affairs Govt. of India has issued an Office Memorandum dated New Delhi 23rd May 2013 wherein it was stated that, “to quote, “Article 371A(a) does not confer legislative power to the Legislative Assembly of Nagaland on regulation and development of mineral oil. The power to make law in respect of subject covered under List-1 of the Seventh Schedule of the Constitution, including entry 53 of List-1 rests with the parliament. Therefore, the resolution passed by the Nagaland Legislative Assembly in July 2016 is unconstitutional and invalid “unquote.” This OM was not challenged by the Govt. of Nagaland. It is observed that if the quoted OM is taken as the settled law presently holding the field Article 371A resultantly does not have any legal and constitutional force, but rather becoming stoically redundant. If the power of the Nagaland Legislative Assembly to legislate on the provision of Article 371A is thwarted by the Govt. of India, then the Nagaland Legislative Assembly could legally legislate only on those matters that are enumerated in the List III in the Seventh Schedule known as state List in consonance with the provisions of Article 245 read with Article 246, 247 and 248 of the Constitution. This arrangement will make Nagaland State which was formed through a written political agreement in the same footing with other states in the Indian Union who were otherwise created under States Reorganisation Commission in accordance with Article 3 of the Constitution of India.
In a relevant case, “Temjenkaba Vs Temjenwati reported in (AIR 1992 Gau 8,1991(2) Gau LR 200) the appellants contended that under Article 371A of the Constitution of India no Act of parliament could extent to the State of Nagaland if it relate to the administration of civil and criminal justice involving Naga customary law unless the Legislative Assembly of Nagaland by a resolution so decides, and that since the Legislative Assembly of Nagaland had not adopted any resolution to extent the Limitation Act of 1963 to Nagaland State, the said Act did not extent to the State of Nagaland. However, on consideration of entirety of the matter the Hon’ble Gauhati High Court has ruled that the Limitation Act 1963 does not involve decision according to Naga customary procedure hence, it can apply in Nagaland, and that the provisions of Article 371A of the Constitution were not attracted”. By all indications it is observed that the Article 371A does not by itself per-se provides blanket protection and safeguards to its special provisions, rather it is observed that the bilateral 16 Point Agreement of 1960 and Article 371A is slowly fading and fairly eroding its existence by arbitrary dictates of Govt. of India. It is a saddening reality that the Govt. of India is overriding and destroying the provision of Article 371A on all occasions in its own motion unilaterally and is followed consciously or unconsciously by the Naga Legislatures over the years. It is high time that Nagaland Legislatures should collectively take up this eroding Article 371A and its related matters with the Govt. of India on a war footing, which is an inevitable necessity if not a urgent bounden requirement. The Nagaland State cannot for indefinite period depend on the dictates and dispensation of Govt. of India. Nagas are no longer living in isolated self- governing independent villages anymore. Nagaland and its people had grown tremendously in all spheres over the years. Today the Naga people can stand at par with any civilized citizens of the world.
(Views and opinions expressed are all writers own individual bearings and must not be equated with the stand or understanding of any political party in Nagaland in any manner whatsoever.)

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