Kakheto Sema
Sr. Advocate & Sr. Addl. Advocate General, Nagaland
In the first instance the debate was the infringement of Article 371A on account of Women’s reservation. In my earlier opinion I expressed my view that the argument that Women’s reservation violates Article 371 A is foundationally erroneous. Thereafter the argument has now shifted to the applicability of Article 243T vis-a vis Article 243ZC. This argument has now been advanced by none other than certain members of the legal fraternity purporting to be acting in the name of the Nagaland Bar Association (NBA). They acknowledge that Civic elections do not violate Article 371A. However they argue that in terms of Article 243ZC, the State is exempted from the ambit of Article 243T. This argument put forward has made it necessary for the debate to continue, So that there is no confusion in the minds of the people. At the very outset, I must say, it is regrettable that a few members of the bar, including some office bearers, have resorted to publishing their individual opinion in the collective name of the Nagaland Bar Association. As a collective body, the NBA discusses issues of Public importance and only then, a consensus opinion, if any, is published in the Public domain. Legal issues are complicated and a consensus opinion is rare. I can only assume that the members concerned have taken the course adopted for their personal agenda. The bottom line is that the opinion expressed in the name of the NBA is not the opinion of the NBA.
For the argument that Article 243T is not applicable in view of the exemption contained in Article 243ZC and that the Government has erroneously interpreted the aforesaid Article, the relevant portion of Article 243ZC is quoted here under:
Article 243ZC “Part not to apply to certain areas- (1) Nothing in this Part shall apply to the Schedule Areas referred to in clause (1), and the Tribal areas referred to in Clause (2), of Article 244.”
In relation to the aforesaid Article, Article 244 is also quoted hereunder. Article 244 “Administration of Schedule Areas and Tribal Areas- (1) The provisions of the Fifth Schedule shall apply to the administration and control of the Schedule Areas and Schedule Tribes in any State other than [the States of Assam [, [Meghalaya, Tripura and Mizoram]]]. (2) The provisions of the Sixth Schedule shall apply to the administration of the Tribal areas in [the States of Assam [, [Meghalaya, Tripura and Mizoram]]].
Article 243ZC (1) states that part IXA shall not apply to Schedule areas referred to in Clause (1) and Tribal areas referred to in Clause (2) of Article 244. We are concerned with the Schedule areas referred to in Article 243ZC. The tribal areas are in relation to the provisions of the 6th Schedule of the Constitution and irrelevant for the State of Nagaland. In interpreting the Statutes a fundamental principle is that the language used should not be taken out of context. Therefore, Article 243ZC is specific in its reference to Schedule areas in Clause (1) of Article 244. Article 244 (1) falls under part X of the Constitution of India and states that the fifth Schedule of the Constitution shall apply to the administration and control of the schedule areas and Schedule tribes in any State other than the State of Assam, Meghalaya, Tripura and Mizoram. The Fifth Schedule provides for the powers of the Central Government and the State Governments in relation to Scheduled area in States. Clause 6 of the Fifth Schedule defines Schedule areas as such areas as the President may by order declare to be Schedule areas. Therefore Article 243ZC, Article 244 and the Fifth Schedule must be read together to arrive at an understanding of the exemption from Part IX A mentioned in Article243ZC. Just because Article 244 mentions that the Fifth Schedule shall apply to the administration and control of Schedule areas and Schedule tribes in any State, Article 243ZC and the Fifth Schedule cannot be expanded to mean Schedule tribes in general. The provision of the aforesaid Article read with the Fifth Schedule would make it crystal clear that the exemption is for Schedule Tribes living in Schedule areas in the States declared by the Presidential orders. At the cost of repetition the Fifth Schedule referred to in Article 243 ZC and Article 244 is applicable solely to Schedule areas declared as such by Presidential order. Therefore, by relying on the use of the phrase “……….and Schedule tribes in any State………” it is erroneous and absolutely without any legal basis to opine that Article 243T does not apply to the State of Nagaland, a tribal State, in view of Article 243 ZC, Article 244 and the Fifth Schedule.
Reference has also been made to the Schedule Tribes order wherein any Naga tribe is included. This order is relied upon as the basis for exemption under Article 243ZC, Article 244 and the Fifth Schedule. The Schedule tribes order is simply a list of the Schedule tribes recognized by the Government of India inhabiting the States. Its co- relation to the Articles and Schedule aforesaid is limited to the corresponding Presidential orders declaring Schedule Area, if any.
If we are to accept the argument that part IXA does not apply to the Schedule tribes it would lead to the absurd conclusion that Part IXA does not apply to any States in India. Each State in India is inhabited by Schedule tribes in addition to the general populace. The further argument with regard to numbers i.e. majority and minority is self defeating, in as much as, it is in the interest of minorities that Parliament in its wisdom brought in Article 244 and the Fifth Schedule for the protection of Schedule tribes through Schedule area. In our context the State of Nagaland, is a full fledged State. It is inhabited by Nagas who are tribals. However, this does not mean that the State of Nagaland is a Schedule area and therefore exempted from the preview of the Part IXA of the Constitution of India. To reduce ourselves to a Schedule area, without a Presidential order, that too, in derogation of our Status as a State, is nothing short of self mockery, a bad joke. Also it has been urged that Article 243T applies to SC, ST a nd Women in States where they are in minority. This assertion has no Constitutional and/ or legal basis. The reservation contemplated is for SC, ST and women as distinct groups and not based on their status as minorities or otherwise. Further reservation is provided for SC, ST and women as separate and distinct group and the reservation for one group in any State is not dependent upon the existence of the other, as sought to be made out.
Much confusion has been created in the minds of the people. I suspect that some responsibility for this situation falls on the members of the legal fraternity. Having said this as citizens of the State, it is incumbent upon all of us to understand the letter of the law. We are no more living in the dark ages and the course of action we have adopted thus far, is a poor reflection on our society. Having women’s reservation and civic polls is the stimulus for our present circumstances, however the larger issue for all of us is our capacity to grow and develop and be public spirited citizens, informed acquainted and acting in adherence to the Rule of Law.
In conclusion it is my humble opinion that Constitutional provisions and enactments thereunder have been misinterpreted in the pursuit of personnel agendas. The legal position in relation to women reservation is clear. Article 243T enforced since 1993 is a Constitutional mandate. The exemption contemplated in Article 243 ZC, Article 244 and the Fifth Schedule is not available to the State of Nagaland. Also, once the electoral process has been set in motion, Article 243ZG mandates that the election process must be completed and can only be questioned after the conclusion of the election process. The organizations and individuals opposing the election, in all fairness, must understand the legal imperatives for the Government in holding the Municipal election.
