A. Zhimomi
The events of the past few weeks have been keenly observed by the citizens of the State. Varied opinions have been expressed about the issue of womens’ reservation in Urban Local Bodies (ULBs). The expression of diverse opinions is a healthy sign of democracy. However, there is an inherent risk in espousing the cause of democracy i.e., the suppression of the opinions of the marginalised and the minority. The course of human democracy is replete with examples of individuals who have influenced mass movements. Some have been positive and many have been horrifyingly negative and harmful. It is in this context that I pen this article with my perspective on the issue of womens’ reservation and other issues arising thereform.
There can be no doubt that Part IX A of the Constitution which includes Article 243T was incorporated in the Constitution of India in the year 1993. The incorporation of this part in the Constitution of India came about through the powers of Parliament exercised under Article 368 and the procedure prescribed therein. This would mean that this amendment of the Constitution and the inclusion of Part IXA thereof, was ratified by the States. This amendment of the Constitution stands on a different footing vis-a-vis the power of Parliament to enact laws as contemplated by Article 246.
The State of Nagaland took its first steps to implement Part IX A of the Constitution by enacting the Nagaland Municipal Act 2001 (hereinafter referred to as the Act of 2001). The said Act was notified in the Nagaland Gazette on 18.10.01. Pursuant thereto, the first election to the Municipal Councils and Town Councils was held in December 2004. The Act of 2001 did not provide for the reservation of seats for women as contemplated by Article 243T. Based on the election, Municipal Councils and Town Councils were constituted throughout the State. One lady Khetoli challenged the constitution of the DMC, inter-alia, alleging violation of Article 243T in the Act of 2001 and consequent elections thereon, by filling W.P.( C) No.638(K)/05.
The writ petition ultimately came to be disposed off by the High Court on the undertaking of the Government that necessary amendments would be made to the Act of 2001 to give effect to Part IX A of the Constitution of India and Article 243T thereof. The State of Nagaland thereafter enacted the Nagaland Municipal ( First Amendment ) Act, 2006 (hereinafter referred to as the Act of 2006). In relation to Article 243T, certain sections of the Act of 2006 are relevant and the same are quoted hereunder:
“Section 10. After the existing section 23 in the principal Act, the following shall be INSERT IGNOREed, namely:
“23A. Reservation of seats in Municipalities
(1) Seats in every Municipality shall be reserved for the Scheduled Castes, the Scheduled Tribes and women, including women from the Scheduled Castes and the Scheduled Tribes, in accordance with the provisions contained in clauses (1) to (3) of article 243-T of the Constitution.
Section 12. After the existing section 484 in the principal Act, the following shall be INSERT IGNOREed, namely:
“Within a year of commencement of this Amendment Act, the Government shall review the Act so as to bring its provisions in complete harmony with Part IX-A of the Constitution”.
Consequent upon the said amendment, acting in terms of the provisions thereof, the Government of Nagaland issued Notification No. MAC/Home- 9/2006 dated 23.3.07 notifying the wards reserved for women in the Municipal Councils and Town Councils in the State. Elected members of the notified wards were deemed to have vacated their seats to make way for women who would, through a circuitous process, be appointed to these seats. Resultantly, the affected Councillors across the State filed Writ Petitions challenging the amendment Act of 2006. The Writ Petitions were numbered as W P (C) No. 46(k)/07, W P (C) No. 58(k)/07, W P (C) No. 59(k)/07, W P (C) No. 60(k)/17, W P (C) No. 61(k)/07, W P (C) No. 63(k)/07, W P (C) No. 64(k)/07, W P (C) No. 65(k)/07 and W P (C) No. 68(k)/07. The challenge in these petitions was on the ground that the reservation for women as sought to be implemented was not in terms of Article 243T of the Constitution.
Article 243T prescribes that 1/3rd of the total seats meant for direct election should be reserved for women. The Act of 2006 chose a different approach. During the pendency of these petitions, the tenure of the Municipals Councils and Town Councils expired and the petitions were disposed off as not pressed. The pertinent point of note is that there was no protest whatsoever from any individual or organisation when the reservation for women was introduced in 2006/2007. It was the affected Councillors themselves who approached the High Court seeking legal redress. This fact begs the question, what are the changed circumstances now?
All the State Governments in the Indian Union are obligated to carry out Constitutional mandates. There can be no gainsaying the fact that Part IXA of The Constitution of India and Article 243T thereof is a constitutional mandate. When the State Government recently initiated its duty of setting up the ULBs, various organizations began voicing their protests. The objection was that womens’ reservation in ULBs violated Naga customary practices protected under Article 371A of the Constitution of India. The stand taken was that no laws passed by Parliament affecting Naga customary practice would apply as envisaged by Article 371A.
The provisions of law must be carefully interpreted. In the scheme of the Constitution of India, Article 243T and Article 371A operate in different fields. Also, Article 243T is not a law framed by Parliament as contemplated by Article 371A. It is a constitutional provision. Students of law and adherents of law must distinguish between a constitutional provision and a statutory enactment made under constitutional provisions. Another stand taken was that the Act of 2001 contains provisions with regard to taxation on land and its resources. This objection was accepted by the Government and by the Nagaland Municipal (Amendment) Act, 2016, the provisions relating to taxation on land and its resources was omitted. This would mean that there is now no question of taxation on land and its resources by the Municipal Councils and Town Councils. Surprisingly, individuals and organizations continue to harp on taxation on land and its resources saying that instead of the word “omitted”, the word “deleted” should have been used in the Act of 2016. In statutory language, the word omit and delete have the same effect. The point of note is that by the Act of 2016, the State Government has removed the provisions relating to taxation on land and its resources.
An opinion has also been expressed to the effect that by virtue of the exemption mentioned in Article 243 ZC, Part IXA does not apply to the State of Nagaland. The rationale in support thereof is that the State of Nagaland is inhabited by Schedule Tribes. Article 243ZC is in relation to Scheduled Areas and Tribal Areas mentioned in Article 244. Article 244 itself, falls under Part X of the Constitution of India and is in relation to Scheduled Areas contemplated in the Vth Schedule and the Tribal Areas contemplated in the VIth Schedule. The State of Nagaland is not a State which falls either under the V th or VIth Schedules. It is a full fledged State in the Indian Union and outside the purview of the Scheduled Areas and Tribal Areas in the States, contemplated by Article 244 and Schedules V and VI of the Constitution.
It also appears from reports in the newspapers as well as the social media that the State Government is accused of being the first in the Country to hold elections to the ULBs in terms of Part IXA of the Constitution. This allegation is absolutely without any basis. Net savvy citizens can easily ascertain from the internet the application of Part IXA of the Constitution of India from 1993 onwards. Infact, some States have even taken steps to enhance the reservation for women in ULBs above the prescription of 1/3rd contemplated by Article 243T. Also, in the State of Nagaland, women reservation was implemented without demur from individuals and organisations in 2006/2007 and the process initiated in the year 2017 is the second such election.
The inaction of the State Government in holding civic elections and complying with Part IXA of the Constitution, prompted the Naga Mothers Association to approach the High Court in the year 2011. A Single Bench of the High Court directed the implementation of Part IXA of the Constitution of India holding that reliance on Article 371A in not implementing Article 243T is misplaced. In appeal by the State, the Division Bench of the High Court allowed some time to the State Government to examine the issues raised. The matter then went up to the Supreme Court. With the announcement of the civic polls and the steps taken by the State Government to implement Part IXA of the Constitution, the appeal filed by the women was agreed to be withdrawn. Pertinently, in the year 2012, the State Assembly passed a resolution exempting the State from the purview of the Part IXA of the Constitution of India. This glaringly apparent act of legislative incompetence was corrected by the State Assembly in the year 2016. In the scheme of the Constitution of India, Parliament alone is competent to provide exemption from any part or provision of the Constitution of India. In this conspectus, can the women in Naga society be blamed or faulted for seeking to enforce their constitutional rights.
I would dare to presume that those spearheading the protest against reservation for women in ULBs realised that they were barking up the wrong tree. This inference is drawn from the agreement between the leaders of the JCC, the NBCC and the representatives of the Government on 30.1.17. On the part of the JCC, it clearly recognizes that the reservation for women in ULBs is a constitutional obligation. What the JCC however desired was the postponement of the election for a period of two months, to educate the people on this issue. These developments happened simultaneously with the filing of a petition in the Honble High Court with regard to the conduct of the elections. The Hon’ble High Court directed the State Government to ensure free and fair elections as notified. In this scenario, the decision of the State Government to go ahead with the elections in some areas as notified evoked huge protests. The masses took to the streets. Public and private properties across the State were destroyed and damaged. In the process, unfortunately, two young men lost their lives. These developments then added a new dimension to the crisis. Bandhs were enforced throughout the State. Government vehicles were prevented from plying and Government offices closed down. The organisations now demand the stepping down of the Chief Minister and his Cabinet as well as the resignation of the President of the NPF Party.
A new organisation in the name and style of NTAC has recently been formed. Reacting to the decision of the State Government to approach the Central Government for exemption from Part IXA of the Constitution, the NTAC alleges a “sell out” of Article 371A of the Constitution of India. They further state that the State can frame its own laws under Article 371A, as it has done in the Nagaland Municipal Act of 2001 and other laws. Both the Central as well as State Governments derive their legislative powers under the provisions of Article 246 of the Constitution of India. It is therefore, erroneous to state that the Nagaland Municipal Act 2001 and other laws have been framed under Article 371A of the Constitution of India. Digressing for a moment, Article 371A of the Constitution has been directly called into question in the PIL filed by the Lotha Hoho in relation to the oil issue. In this case, by an interim Order dated 8.10.15 in P.I.L. No. 4(K)/15, the Hon’ble High Court has observed that the State Assembly does not have the competence to legislate on the subject by taking recourse to Article 371A. This order though interim nullifies the argument that the State Assembly can legislate by taking recourse to Article 371A. As a corollary, the stand that the decision of the Government to approach the Central Government to exempt the State from Part IXA of the Constitution is a “sell out”, also necessarily falls flat. It is true that both Parliament and the State can enact their own laws with regard to subjects within their competence. However, as earlier stated, Parliament alone is competent to exempt any State from the purview of the provisions of the Constitution. Therefore, though belated and an attempt to correct the acts of omission/commission of the past, to accede to the demands of the organisations with regard to womens’ reservation, the only recourse for the State Government is to approach the Central Government as contemplated. For individuals and organisations opposed to Part IXA of the Constitution and Article 243T thereof, the door to challenge the same has always been open and is still open. The conclusions that can be arrived at are as under:
1. Part IXA is in force throughout the States in the Indian Union since 1993.
2. The State of Nagaland first gave effect to Part IXA and Article 243T thereof through the Act of 2006 and sought to implement the same in the year 2007. No one protested then.
3. The protest to the notified elections in January – February, 2017 took shape on the ground that the State Government has for the very first time sought to implement Part IXA of the Constitution of India and the same is in violation of Article 371A.
4. The various organisations came together and formed the JCC which began spearheading the protest. Ultimately, on 30-01-17 the JCC acknowledged the constitutional obligation of the State to implement Part IXA of the Constitution of India and sought postponement of the elections for a period of two months, to educate the people on the issue.
5. Simultaneously, a petition was filed by a lady in the Principal Seat of the High Court. The High Court directed holding of the elections as notified.
6. The State Government decided to hold elections in certain areas. This was met with widespread protests. Public and private properties were damaged and destroyed. Two young men lost their lives.
7. An organisation in the name and style of NTAC then came into being. This organisation demanded the declaration of the elections as null and void and the resignation of the Chief Minister and the cabinet.
8. Various organisations began enforcing bandhs and lockdowns of Government offices throughout the State.
9. The State Government acceded to the demands of declaring the notified elections as null and void.
10. The State Government decided to approach the Central Government for an amendment of the Constitution, exempting the State from Part IXA of the Constitution of India. The NTAC has termed this as a “sell out”. It claims that by virtue of Article 371A, the State is empowered to pass necessary laws and the decision of the State Government displays complete lack of competence.
11. The NTAC continues with its demand for the resignation of the Chief Minister and the cabinet.
From the events that transpired as above referred, further conclusions can be drawn:
1. The JCC expressly acknowledged that the holding of the civic elections in terms of Part IXA of the Constitution of India did not infringe Article 371A.
2. In terms of the Order of the High Court dated 8.10.15 in P.I.L. No. 4(K)/15, the State Assembly lacks competence to legislate on any subject under Article 371A.
3. The State Government has attempted to carry out its constitutional duty. Organisations opposed to women’s reservation have prevented the Government from doing so. They now demand the resignation of the Chief Minister and the cabinet.
I did not wish to express my opinion on the situation that has engulfed us. However, as a lawyer involved in the litigation from the very beginning, i.e., 2005, I would be failing in my duties as an Officer of the Court, if the correct facts are not placed for the people to appreciate the nature of the issues involved. As a citizen of the State, I am also concerned with the direction in which our society is driving itself. There are those who have mislead and the huge majority who have been mislead. As citizens, it is incumbent upon each and everyone of us to re-visit our respective stands. It is our duty either as members or designated leaders of the various organisations, to educate, empower and lead, correctly and truthfully. At the same time, we must also respect the rule of law. Democracy is for the people but democracy should not be reduced to mobocracy and the suppression of diverse or dissenting opinions through threats and intimidation. The democratic process and the rule of law provides effective representation for the people. It is for the people to take recourse to such processes. Any other process would lead to anarchy and such circumstances would not bode well for Naga society.
