Prof. A. Lanunungsang
Nagaland University
There are many special provisions guaranteed by the constitution of India for different categories of people in different states in Indian Union. The constitution (thirteenth Amendment) Act, 1962 is said to be a very special Act that came into force terming as “Temporary, Transitional and Special Provisions”. Accordingly, Article 371(A) emerged as a special provision with respect to the State of Nagaland which says: “Notwithstanding anything in the constitution,-
a No Act of Parliament in respect of
i Religious and social practices of the Nagas,
ii Naga Customary Laws and procedures,
iii Administration of Civil and Criminal Justice involving decision according to the Nagas Customary Laws,
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”
It is understood that this is not a permanent arrangement because it is only a ‘temporary transitional arrangement’ which is special in nature and content. The clause provides certain special privileges to the Nagas provided they can meaningfully use the term of its references. It has a wide range of object and scope that needs proper understanding and interpretation because it intends to fulfill the desires of the Nagas in certain ways. In fact, this provision would have been the guiding principle for the Nagas not only for protection of their rights but also for furtherance of socio-economic and political development even evolving a new pattern of social structure based on their social practices. However, it seems that the scope and object of this clause has not yet been deliberated critically after formation of the Legislative Assembly of Nagaland since 1963. Their term of five years period ceases without having an opportunity to debate this provision in the Assembly. It is understood that whatever the Legislative Assembly of Nagaland passes resolution within the framework of this clause; the Indian Parliament will have no say provided the Nagaland Legislative Assembly takes decision and adopt resolutions on those items mentioned above.
It is in fact a controversial issue because, (i) it has become a stumping block creating serious obstruction by the so-called land owners of the Nagas towards development and progress taking undue privileges hampering developmental activities, (ii) it is against the spirit of the Naga national struggle for freedom because Nagaland state was strategically installed as a temporary measure to curtail the Naga peoples movement for freedom.
The Nagas are in the crossroad today. They are neither able to harness the provision of the Act nor fight for a higher status of self-rule which is possible even under the scope of Article 371-A. As a result, the Nagas are not managing the Indian state with clear conscious and at the same time, they are unable to pursue whole heartedly for a higher status of self-rule as per the constitutional provision. Therefore, the prospective aspects and scope of this clause needs to be examined by defining and red-defining the concepts in the true sense for the interest of the people for whom it was framed. Whatever the drawback it may contain, there is a lot of scope behind the meaning and object of this clause. However, possible implementation of this clause depends on the elected members who can take the most appropriate resolutions in the Legislative Assembly. However, if they are not willing or determine to do so; the matter ends there. Even if they are willing, but unless they are fully aware about its meaning, object and the scope, there is no meaning of keeping such a special provision. At the same time, majority of the common people are not at all aware about its provision. This is the problem with Article 371-A as special provision.
Thought it provides certain privileges, the longer it keeps without making appropriate resolutions in the Legislative Assembly of Nagaland, the more they will be deprived of many opportunities and privileges as guaranteed by this clause. The giver will simply laugh at the users as long as they are unable to interpret the clause for their advantage. Therefore, it needs a thorough debate to draw a fuller interpretation, clause by clause. Then only; suitable Act can be passed in the Assembly. In the first place, the clause can be translated into different Naga dialects and transmit the message to the common people for whom it was made in order to educate the masses. As a frame of reference, the translation version in few Naga dialects (Ao, Lotha,Tenydie and Phom) is re-produced from a booklet published by Naga Scholar Society, 1992 by the same author).
The clause provides to freely adopt, resolve and enact laws pertaining to the items referred above for which Indian Parliament will have no say. It means to say that the Legislative Assembly of Nagaland is more competent than the Indian Parliament in this respect because Indian Parliament cannot surpass the decision adopted by the Legislative Assembly of Nagaland. This might be spirit of the above clause. It opens up the way to evolve even a new social order based on social and religious practices, customary laws and procedures. In addition, civil administration involving civil and criminal justice will have to be settled within their level as per customary laws. The Nagas can try to create even a new social structure based on the spirit of their traditional practices in the light of traditional system of rural social structure wherein, the administration of justice, civil administration and a self management type of development could be suitably accommodated. The clause permits to continue with their traditional system of decision making pertaining to civil and criminal justice. Binding of the decision of High Courts and Supreme Court on the matters of the above subject does not arise. As a result, one will find that many cases pertaining to the Nagas are remanded to the Customary Court from Guwahati High Court because judgment of the other courts on the matters of the above mentioned clauses cannot and should not over rule this special provision. It means to say that the judgment of the Naga customary courts becomes more competent than the Supreme Court in the context of the Nagas provided they can redefine the usages of customary laws and its practices as envisaged in the constitution of India.
It may be noted that the institution of Dobashe is not of the Nagas. It is a creation of British rule which needs transformation in the context of present needs and situation. When this special provision is fully understood and applied, the present system of Dobashe Court can be taken care under the new arrangement of judiciary system. Therefore, Dobashe Court as such will not be necessary in the near future. In fact, it needs to be re-structured giving more status, powers and functions under a well defined social structure of Naga Judiciary system.
The Nagas can conveniently evolve a new model of civil administration, maintenance of law and order even without state police system because every Naga citizen is more than a state police irrespective of young and old. Every Naga elderly person especially the members of the village council act as a judge and law giver. The member the village councilors takes the highest decision that binds every citizen in the village. In this regard, decisions of the alien court such as Indian Panel Court, High Court, Supreme Court becomes redundant. A kind of absolute freedom is given to the Nagas in regards to decision making according to their customary laws though it is yet to be codified . This is such a very high status given to the Nagas in the field of judiciary system. However, article 141 says that the decision declared by the Supreme Court shall be binding on all the lower courts within the territory of India.
According to Naga social and customary practices, leaders are either selected or nominated representing each clan in their social and political institutions. They follow their indigenous system of governance which is better than the modern system of governance. They form the village government, manage their affairs and carry out everything on their own according to their customary laws and social practices. This republican system of village administration and self- management can conveniently carry out demonstrating an indigenous system of self-rule and management system in Naga way on many affairs.
To follow any alien political institution, party system and the procedures of election of the representatives is neither the social practice of the Nagas nor applicable. They neither follow nor practice the socio-cultural practices followed by caste based society because caste system is unknown to Naga society as they are neither Hindus nor Muslims. The constitution allows freely to follow their religious and social practices of the Nagas in their own way. This might be the meaning and object of Indian constitution Article 371 (A). In short; the social practices surpass the authority of Indian Parliament on the matters of those four points stated in the clause. Therefore, it is up to the Nagas to wisely define the meaning of religious and social practices, customary laws and their usages and the scope in the context of their tradition.
The present system of election can also be reformed in the light of Naga social practices while selecting their leaders through consensus but not through Indian system of election. Whether the state of Nagaland is a constituent state in Indian Union or not, the present election system is the killer of Naga society that needs serious examination and introduces a traditional system of selection of the leaders even in the Legislative Assembly according to their social practices and customary laws. There is every possibility if the Nagas can evolve a better governance as indigenous peoples under the provision of the clause. The Nagas can demonstrate the best system of selection of their representatives under the principles of social and customary practices.
It ca be suggested that adaptation of Indian political party system and its election system is contrary to traditional practices of the Nagas in this case. It can be reformed in the light of traditional practices which will be more pristine than the Indian democracy because Indian political party system and its election system is a hyprocratic practice. If this special provision is for the Nagas, one should understand that they have every right to make and re-make the kind of society they want to have, and any kind of social practices they want to follow etc provided they so decide and make resolution on that effect in their Legislative Assembly. If they can decide to follow the traditional system of selection of their leaders, as they have been following in the past since time immemorial, Indian Parliament cannot impose against the decision of the Naga Assembly. The present Indian system of election and political parties shall have no room in Naga case of social practices.
Definition and explanation: The legal experts and parliamentarians may give their own explanation pertaining to this clause. Different scholars may also give their own definitions and interpretations. But before defining the term word by word, care should be taken keeping in mind the object of this clause for which it was kept. They should not ignore the scope and definition of this clause especially the scope of ‘Special’, ‘temporary’ and ‘transitional’. It indicates that the clause is very special, framed for a special category of people and location having unique history and situation. This clause is not a permanent arrangement because it is a temporary arrangement only. Therefore, it is understood that this clause can be amended any time making higher status than this or even delete the whole clause. Till today, the Nagas might have not carefully examined this clause in the light of bringing a permanent political arrangement in the light of ongoing Indo-Naga political impasse.
It has to be noted that the clause was inserted to meet the needs of the transitional stage that was going on at that period of time. Therefore, it provides a wider scope than what it means today. There is every possibility of solving the present political impasse between the Government of India and the Nagas by way of inserting more suitable clauses both in the constitution of India and the Nagas. Enough rooms can be created by inserting the most appropriate clauses having sound relationship between India and the Nagas under the principle of honorable and acceptable solution bringing India and the Nagas more closer accommodating each others’ needs and stand.
Since the interpretation of the meaning of this clause is opened to all; irrespective of constitutional experts, lawyers and parliamentarian; it is high time to involve every Nagas especially the Civil Societies/NGOs and their participation on this pertinent issue. It is highly appreciable to see the initiatives taken by the present State Government of Nagaland on this matter. In fact, there is a need to have series of consultative meetings, open debates and research analysis on the clause which has never been heard of. Some broad observations are given below as a frame of reference though they are neither inclusive nor exclusive.
1. Article 371 (A) (i) “Notwithstanding anything in the constitution No Act of Parliament in respect of: Religious and social practices of the Nagas shall apply to the state of Nagaland unless the Legislative of Assembly of Nagaland by resolution so decide”
(a) Religious practices: It means to say that freedom is given to the Nagas on the matter of religious practices. If so, it needs to identify the types, nature and usages of religious practices in Naga context of present situation (not of the past). The Nagas are no more animist. They are neither Hindus nor Muslims by religion. They are Christians by religion and therefore, whatever the religious practices they follow; absolute freedom is given to the Nagas as a part of secular state in India. Any religious practices like belief and worship system, rituals, ceremony, religious institutions, prayer etc can be had without restriction. Absolute freedom of religious practice is given to the Nagas. No Act of Parliament can impose religious restriction nor binding on the Nagas.
(b). Social practices: Similarly, on all matters of Naga social practices, absolute freedom is given to the Nagas. Then, what is a social practice? Social practice has a wide term which can be understood in the context of both traditional and contemporary societies. Social practice is a continuous process of social principle. It is the centre of cultural activities that binds the society. It can be learned; inherited, re-defined and modified according to change of time. It keeps a given society moving onward and forward. Social practices are those which the people practice in a given society. The Naga tribal commune system of living together unlike caste system in Indian society is a distinct example of Naga social practice. As a part of culture, it is an established norm which is transmitted from generation to generation such as the family and marriage system, the law of inheritance, institutions like the bachelor’s dormitory system, rural polity, (Putu menden) socio-cultural activities, traditional practices like methods for selection of leaders, the followers and the leaders, the rulers and the rule system, open meeting, informal practices like village republic, public announcement, partyless system of government, social capitals etc. are some of the examples of Naga social practices that cover a wide range of both materials and non-materials culture which provide social cohesion, social sanctions, human and social values system; and the wheel of a given society and the art of social management.
Under the purview of social practices, Naga society can be reformed according to their own requirements based on the foundation of social practices. It is up to the Nagas to define Naga social practices and pass resolutions in their Assembly to protect and uphold the meaning of the Naga social practices in the light of their social capitals.
2. (ii) “Notwithstanding anything in the constitution No Act of Parliament in respect of: Naga Customary Laws and procedures shall apply to the state of Nagaland unless the Legislative of Assembly of Nagaland by a resolution so decide”.
Application of Naga customary laws and procedures is given free on the matters of civil and criminal justice wherein, there is a need to take decision. Freedom is given to the Nagas to exercise their customary laws and procedures in any matter relating to Civil and Criminal Justice. Civil and Criminal Justice covers a wide range of issues. For instance land disputes, customary related matters, public service matters, family related matters etc comes under civil cases where as murder, robbery, thieve, dacoit, rape, cheating etc comes under the meaning of criminal offences. On all these matters, absolute freedom is given to the Nagas to apply customary laws and procedures if they so desire. However, it is up to the Nagas whether to follow the constitutional provision or to ignore it. Non appliance of customary laws, usages and procedures on those matters means ignoring the constitutional provision laid down in Article 371-A (ii).
The clause has both scope and limitations. They are indicated below:
Scope:
• Customary laws and procedures can be institutionalized.
• A unique judiciary system can be demonstrated in the world.
• Promotes promptness towards delivery of justice.
• Total separation of judiciary system from executives.
• Promotes moral and ethical teaching and learning
• Promotes real citizenship making.
• Promotes social cohesion and integrity.
• A training ground for the youngsters.
• Facilitates scope for employment in different Naga Customary Courts of four tier system
• The provision can be extended to the entire Naga areas irrespective of geographical location.
Limitations:
• Customary laws and procedures vary from place to place or tribe to tribe.
• There is no uniform pattern in content, application, approach and method.
• It is based on oral tradition only.
• It is transmitted from generation to generation that may bring deviation from its usages and meanings.
• There is no standard system of application of its laws.
• They follow an un-codified laws and procedures.
• It is neither consistent, nor regular.
• There is enough room to misuse it creating biasness.
• There is a chance of misinterpreting their customary laws and procedures.
• It is a rigid practice in theory but flexible in nature and application.
• Customary bindings are no longer applicable in modern society.
• They are operated mostly by uneducated person in the village.
• It is not yet institutionalized.
It is understood that inspite of constitutional provisions giving absolute freedom, the Naga customary laws and procedures suffer due to absence of well defined structure and functions. As a result, they are unable to utilize the opportunity given in this clause. Unless it is fully institutionalized, the spirit of customary laws, its usages and procedures cannot function properly. Therefore, what they need today is to constitute the institutions of Naga customary laws such as the Naga Supreme Court, the Naga High Court, (not of Guwahati High Court), the Naga Zonal/Regional Courts, the Naga Tribal Courts, the Naga Regional Courts to deal with civil and criminal justice in Naga way as per the provision. A computer machine in your hand will be of no use unless basic infrastructure is created in terms of space, power line connection, table etc. In the same manner, article 371-A will be of no use unless social structure is created. This will pave the way for effective implementation of Naga customary laws and procedures as envisaged in the constitution. Local Naga lawyers can be fitted well under such a well defined and well structured system. However, it depends on the decision of the Legislative Assembly of Nagaland to whom absolute power is delegated. (Not of Indian Parliament)
2.(iii). Notwithstanding anything in the constitution No Act of Parliament in respect of: Administration of Civil and Criminal Justice involving decision according to Naga customary laws shall apply to the state of Nagaland unless the Legislative of Assembly of Nagaland by a resolution so decide”.
Item (ii) and (iii) has direct relationship because item (ii) can be applied in item (iii) on the matters of administration of Civil and Criminal Justice. The highest authority is given to the Legislative Assembly of Nagaland in regard to administration of civil and criminal justice. Whatever the Naga customary laws and procedures say become final on these matters because Indian Parliament cannot over rule the decision taken by the Legislative Assembly of Nagaland if they so decide.
Right from the Legislative Assembly of Nagaland, Secretariat, Commissioner’s office, down to the village level administration, the Naga customary laws and usages can be appropriately applied if they so desired as per the constitutional provision by way of defining the term ‘social practices’ and ‘customary laws’. Even on the matters of corruption charges that are involved civil administration, decision can be made according to their own established norms. Disciplinary action under customary laws has higher binding than non-customary action. A given customary law hardly fails. Today also, no government authority can ignore the Naga customary laws.
Secondly, on the matter of crimes being committed and a decision is required thereon to that effect, the Naga customary laws can be applied as the supreme authority. It means to say that freedom of Naga judiciary system is given without pre-condition. Such an absolute freedom is given to the Nagas irrespective of their place of residence. The spirit of the clause has such a wide meaning and scope and as such; this clause covers all Naga tribes whether they are residing in India or in Burma. Indian Parliament cannot say ‘NO’ if any Naga groups wishes to enjoy the privileges as guaranteed by this clause. This is one of the unexplored rights given to the Nagas provided they can take wise decision within the framework of this constitutional provision.
4.(iv)“Notwithstanding anything in the constitution No Act of Parliament in respect of: ownership and transfer of land and its resources shall apply to the state of Nagaland unless the Legislative of Assembly of Nagaland by a resolution so decide”
This is a part of economic freedom given to the Nagas .In this clause there are two main important concepts namely (a) ownership and transfer of land, (b) the resources, which belong to the Nagas. It means, the Nagas alone have the sole right over these two concepts.
(a).The ownership and transfer of land-The land is the solid part of the earth’s surface which is distinct from oceans, seas, lakes etc. It comprises of the entire surface and sub-surfaces of the earth’s crust. All these should entirely be owned by the Nagas in Naga territory and they cannot be transferred to the hands of non-Nagas in any form. On the other hand, ownership right should not be controlled by the non-Nagas in Naga soil.
(b) The resources- “Resource” is a term which is related to means of doing something. In other words, ‘resource’ is a supportive means of doing things. Resource may be of natural made or man-made resource. Resource includes many things such as land, oceans, lakes rivers forest and whatever they contained, that can be used as means of doing things. Resource also includes all economic enterprises like industries, trade and commerce, manufacturing and processing unit, servicing unit, shops, hotels business and commercial institutions and bodies, etc. manpower, human’s creativity, capability, knowledge, wisdom, understanding, imagination and personality etc., are known as resources because they can be used as a means of doing many things. All movable and immovable properties, money, wealth, capitals are all considered as resources; and all these belong to the Nagas is the meaning and scope of the above clause. The term ‘resource’ should be understood and be taken into consideration in relation to men with nature, society, institutions and culture. Vote bank is one of the resources that are controlled by alien citizens in Nagaland. This is unconstitutional in this regard. Some of the plus points in this direction are the ‘Naga social capitals and their distinct identity and unique history that need further debate.
In the above constitutional provision, the word ‘resource’ is recorded in plural number ‘resources’ which implies all the resources either natural made resources that are found and can be discovered in the land. They all belong to the Nagas themselves. Non-Naga people, individual, group or in any form can claim the rights over those resources in Naga territory.
The indicator shows that much of these resources in Naga territory are controlled and there is a tendency of disturbing the ownership rights by non-Nagas and non-tribal. There is heavy exploitation over the ownership rights and controlling system by non-Nagas in their territory. The nature and degree of socio-economic exploitation and manipulation by non-Nagas is found to be very high in many forms taking the advantages of ignorant Naga peoples.
By definition, the ownership and transfer of land and its resources in the context of Article 371 (A),(iv); all resources belong to the Nagas and they cannot be transferred to the non-Nagas. Non-Nagas should have no right to claim over ownership rights and resources in Naga territory but they are happening contrary to this constitutional provision. In case of transfer of ownership rights to the hands of non-Nagas and also permitting to control the resources by them is the fault of the Nagas themselves which is a matter of serious concern. The foreign national such as the Muslims meyas who have the capacity of penetrating the fabric of Naga society from the plain beyond the hills Naga Burma border is a serious challenge.
On the matters of interpretation of Article 371(A) one can ask the following questions: -
1 By which of the government (National, regional or both) have seriously debated the clause in the past after the formation of the Nagaland Legislative Assembly?
2 How many resolutions have been adopted and how many Acts have so far been enacted under the principle of the given clause?
3 What are the religious and social practices of the Nagas under which an appropriate social reformation can be initiated in Naga way?
4 How do we define Naga social and practices in the context of traditional Naga society?
5 To what extent the Naga Customary Laws and Procedures be applied in the entire Naga inhabited areas paving the ways of togetherness of Nagas?
6 Why the Nagas are spending their money, time, energy and other resources in Indian Courts unnecessarily in stead of establishing their own Courts in their land as per the freedom of Judiciary system envisaged in article 371(A) (ii) and (iii)? Why should we not introduce an indigenous Naga High Court as provided by the constitution?
7. How to introduce Naga system of selection of the leaders in Naga way according to their customary practices? Which of the political party will be willing to take up this great challenge with commitment, regional or national party? And how many of the candidatures will be willing to bring a change under this clause, politically, socially and economically?
8 What are the resources found in Naga territory and who are controlling those resources and why?
9 Why do we not found a solution on the Indo-Naga political identity crisis by way of inserting most acceptable and suitable clause both in the constitution of India and Naga constitution?
It is obvious that this special constitutional clause laid down for the Nagas had never been debated in the Legislative Assembly of Nagaland in the past. Many people talk about it, but they are not trying to understand the meaning and scope of this clause. Many are not aware of the privileges given to Nagas in this clause because after its enactment no serious debated was held and no significant resolution has so far been adopted by the Nagaland Legislative Assembly for the interest of the Nagas. The elected representatives seem not clear about this provision. That is why the masses are suffering today. Inspite of such a clear constitutional provision, they could not introduce substantive Bills till today.
Recently, the NPC Govt. introduced a Bill known as Nagaland (Ownership and Transfer of Land and its Resources) Bill 1990. But it does not give proper understanding of the issue. It fails to include the scope of RESOURCE and its definition. It also does not seek anything on land and its REFORM SYSTEM which is the need of the hour. The clause provides economic freedom to the Nagas but the said Bill does not cover this area except mining operation, petroleum, natural gas and other rental and licensing part. It needs immediate amendment and modification for the interest of the Naga people. There is need to pass some concrete Bills on every sub-clause or item as mentioned in the clause. While considering such an intricate issue, care must be taken to explore all the possibilities to meet the people’s requirement in future.
