Jonas Yanthan
In recent times, some individuals, even MLAs, have been commenting haphazardly about the Article 371(A). Some of the Ministers even blame the provision of ownership of land as a hindrance to development. Some individuals also alley fear that the Article 371(A) may even be scraped after what had happened to Article 370 pertaining to Jammu & Kashmir State. It must be understood that no Article of the Constitution concerning States can be revoked, except amendments, by the Parliament. If at all a decision to abrogate arises, it can only be done mutually.
What the Parliament had done to Jammu & Kashmir State in 2019 appears to be an opinionated approach to Clause-3 of Article 370.Reading the lead portion of the clause that says, “Notwithstanding anything in the forgoing provisions of this Article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify”, seemingly appears to mean that the Article 370 can be abrogated unilaterally by Parliament. However, reading further into the full text we find a condition that says, “Provided that the recommendation of the Constituent Assembly of the State shall be necessary before the President issues such notifications.”. Intent on scraping the article 370, Parliament, inorder, to fulfill the condition of the provision of a non-existent constituent assembly in J&K, imposed President’s rule and then abrogated the article unilaterally. The action of the Parliament, therefore, is a clear breach of trust against a historical agreement of the people of Kashmir and the then Union of India. The action of the Parliament, in regard to J&K, is against the very democratic principle on which India is built upon. Parliament’s action is not only unconstitutional but also against the integrity of India because the unilateral abrogation of the mutually agreed accession document signed between erstwhile sovereign entities; India and J&K kingdom technically imply that Jammu & Kashmiris no more a State in the Union of India but a free country by the circumstance of not being a part of the abrogation act.
Regarding Article 371(A) that created the State of Nagaland, we must understand its historical context, for that matter any State of the Union of India. Naga areas, called by the British as Naga Hills-Tuensang Area became a part of the Union of India not by accession or as a natural process of geographical contiguity or socio-political affinity but by the instrument of political negotiation and agreement thereof. Naga political identity is inscribed in the Memorandum to the Simon Commission of 10th January 1929 which emphatically stated that Nagas being different from the rest of India, by race, colour, culture and even food habits, should be “Left to their own devices as in ancient times” and accordingly, the Government of British India Act 1935 declared the Naga areas as “Excluded Area”; meaning outside the re-formed map of India and it was so. However, in 1947 when India got her independence, Naga areas were intruded by Indian forces leading to untold destruction and chaos. In the midst of this chaos, in July 1960, a 16 Point charter of demands of the Nagas was negotiated between the Prime Minister of India, Jawaharlal Nehru and the Naga People’s Convention, the points of which were deliberated then finalized as mutually agreed principle by both Parties on which the political relation of India and the Nagas will endeavor.
Below is what the 16 Point Agreement is all about:
16 Point Agreement of 1960:
The Salient features of the 16-point Agreement are as follows: -
The Name: the territories known as the Naga Hills-Tuensang Area under the Naga Hills-Tuensang Area Act, 1957, shall form a State within the Indian Union as Nagaland.
The Ministry in charge: Nagaland shall be under the Ministry of External Affairs of the Government of India.
Governor of Nagaland: Governor shall be appointed by the President of India.
Council of Ministers: with a Chief Minister shall advise the Governor in carrying out his/her duties.
The Legislature:
Representation in Parliament: a member each for Lok Sabha and Rajya Sabha.
Parliament Act: No law enacted by the Parliament affecting the below provisions shall have legal force in Nagaland unless specifically applied to it by a majority vote of the Nagaland Assembly.
A) Religious Practices of the Nagas.
B) Customary Laws and Procedures.
C) Civil and Criminal Justice.
D) Ownership and Transfer of land and its Resources.
Local self-Government: Village Council; Range Council and Tribal Council.
Justice Administration: (as what is presently followed)
Tuensang District Administration:
The Governor of Nagaland shall carry on the Tuensang district administration for ten years until the tribes in the Tuensang district are able to shoulder more responsibility for the advance system of administration in other parts of Nagaland.
A Regional Council shall be constituted for Tuensang district by representatives from all the tribes of Tuensang District, and the Governor may appoint representatives to the Council.
On the progress of the Regional Council, actions will be taken to start several Councils and Courts, in areas where the civilians feel themselves capable of developing such institutions.
No law enacted by the Legislative Assembly shall be relevant to Tuensang District unless specifically advised by the Regional Council.
The Council of such areas populated by a mixed population shall be directly below the Regional Council and after ten years the circumstances will be evaluated and the period will be prolonged if intended.
Fiscal Assistance from GOI:
Forest Area Consolidation: Inclusion of the Reserve Forests and contiguous areas occupied by the Nagas. But were referred to the provisions in articles 3 and 4 of the constitution.
Consolidation of Adjoining Naga Areas: GOI pointed out that articles 3 and 4 of the constitution provides for expanding the area of any state but that it was not feasible for the GOI to make any commitment in this respect at this stage.
Development of a Separate Naga Regiment:
Transitional Period:
The draft bill to be presented to the parliament shall be shown to the delegates of the NPC.
An interim Body with representatives elected from every tribe to assist the Governor in administration shall be constituted.
Inner Line Regulation: Rules enshrined in the Bengal Eastern Frontier Regulation Act 1873 shall remain in force in Nagaland.
The 16 Point Agreement, thereupon, was taken up in the Parliament and enacted it as “Article 371(A)”. The text is as follows:
“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 procedures,
(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 by a resolution so decides;
b) the Governor of Nagaland shall have special responsibility with respect to law and order in the State of Nagaland for so long as in his opinion on internal disturbances occurring in the Naga Hills-Tuensang Area immediately before the formation of that State continue therein or in any part thereof and in the discharge of his functions in relation thereto the Governor shall, after consulting the Council of Ministers, exercise his individual judgement as to the action to be taken: Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this sub-clause required to act in the exercise of his individual judgment… and his decision is final;
c) in making his recommendation with respect to any demand for a grant, the Governor of Nagaland shall ensure that any money provided by the Government of India out of the Consolidated Fund of India for any specific service or purpose is included and not any other demand;
d) as from such date as the Governor of Nagaland may by public notification in this behalf specify, there shall be established a Regional Council for the Tuensang district consisting of thirty-five members and Governor shall in his discretion make rules for: -
i) the composition of the Regional Council and the manner in which the members of the Regional Council shall be chosen: provided that the Deputy Commissioner of Tuensang district shall be the ex-officio chairman and the Vice Chairman shall be elected by the members thereof from amongst the Council Members.
ii) the qualifications for being chosen as members of the Regional Council;
iii) the term of office, salaries and allowances, if any, to be paid to the members of the council;
iv) the procedure and conduct of business of the Regional Council;
v) the appointment of officers and staff of the Regional Council and their conditions of services; and
vi) any other matter in respect of which it is necessary to make rules for the constitution and proper functioning of the Regional Council.
2. Notwithstanding anything in this constitution, for a period of ten years from the date of the formation of the State of Nagaland or for such further period as the Governor may, on the recommendation of the Regional Council, by public notification specify in this behalf;
a) the administration of the Tuensang district shall be carried on by the Governor;
b) where any money is provided by the Government of India to the Government of Nagaland to meet the requirements of the State as a whole, the Governor shall, in his discretion, arrange for an equitable allocation of that money between the Tuensang district and the rest of the State;
c) no Act of the Legislature of Nagaland shall apply in the Tuensang district unless the Governor, on the recommendation of the regional council, by public notification…. . to have retrospective effect.
d) the Governor may make regulations for peace, progress and good government of the Tuensang district…
e) i) one of the members representing the Tuensang district in the Nagaland Assembly shall be appointed Minister for Tuensang affairs.
(ii) the Minister for Tuensang Affairs shall deal with, and have direct access to the Governor on all matters relating to the Tuensang district but he shall keep the Chief Minister informed about the same.
As vividly stated by CT Jamir, Senior Advocate, Guwahati High Court, Kohima Bench at a symposium on 8th July, 2023that, to understand the Article 371 (A) we must understand the 16 Point Agreement and rightly so and we notice that from the above reproduced texts. The onus for the Nagas now, especially the politicians, is to seriously and intelligently understand the content of the article and implement the provisions of the Act to get the best out of it for the benefit of the people.
Going through the Article, we are confronted with questions as to how and why the State of Nagaland came under “Home Ministry” from “External Affairs” in 1972 during the then Prime Minister, Indira Gandhi while Hokishe Sema was the then Chief Minister of Nagaland. Secondly, the provision to create a Regional Council to oversee the affairs of the then Tuensang District and designating one of the Regional Council representatives to the Nagaland Assembly as Minister in charge of Tuensang Affair were not put in place till date. To this, the answer might be, instead of a Regional Council with only one representative as Minister in charge of Tuensang Affair in the State Assembly it would be better to have full-fledged Assembly constituencies in Tuensang district to look after the affairs of the district. This is reasonably true; the only question is as to how did those elected representatives of Tuensang area numbering 20 MLAs, instead of only 6 nominated members, then and now, since 1972 commit themselves to the welfare of the people of Eastern Nagaland. The aspiration of what the ENPO is demanding today appears to be enumerated in the Article 371(A) itself. ENPO’s outcry is neglect by Nagaland Government, which means a demand for financial autonomy and this can be actualized by instituting the35 Member Regional Council with financial autonomy as suggested in the 16 Point Agreement and inserted in the Article 371 (A) instead of the 20 MLAs from ENPO area to the Nagaland Assembly.
Another tragic question is as to why Nagaland Assembly in 2012 could not reply, to Verappa Moily, the then Union Petroleum Minister’s contention, that Nagaland Assembly had no authority to pass a law on petroleum since it falls under Central list. Moily is not wrong in his domain because he is not aware of how Article 371(A) came to be. The inability of Nagaland Government to reply emphatically was the problem. We must realize that Article 371 (A) is more potent, circumstantially, than even that of J&K. The reason is J&K acceded to India to avoid threat of invasion from Pakistan and China but in our case, India wanted us to be part of India despite our vehement bloody protest. The demands listed in the 16 Point Agreement, above all, ownership over our land and resources, as was practiced from time immemorial, shall lay with the people and it is so, implies that the Nagas through its State Government can make own laws to regulate our land and our resources. Nagas are fortunate to be the owners of land inherited from our ancestors. In most nations of the world, the government’s ownership of the land and resources were inherited from the kings or rulers. Refugee crisis in the world arises from this system of ownership of land. Our system is envied by others and Nagas must revere this heritage. Given this inheritance, Nagaland Government must devise ways and means to work out things within the confines of our ownership system instead of viewing it as an impediment. The other urgent point is on “Forest Area Consolidation” mentioned in the Article which was referred to the provisions of articles 3 and 4 of the constitution. This must be expedited, legally or mutually with Assam, instead of merely talking about royalty sharing deal with Assam on the oil that are being extracted by Assam on Naga territory.
The paramount importance and need today is to read the Article 371(A) intelligently and in a committed manner in its historicity because it is vital to the dignity and functioning of the State as a political entity. Knowing the Article, in its entirety, is so fundamental to the State, that Nagaland Assembly must organize a symposium on it immediately for all the Legislators and also for the top functionaries of the State to have deeper understanding on the dignity of the people of the State and that Nagaland Assembly is not disgraced again on the rights and duties of the Assembly by someone who may not be knowing under what circumstances Nagaland was created as a State.
