T.N. Mannen IAS (Rtd)
Much has been said and written on the views and understandings on the special protective constitutional provision provided to the Nagas under the Art.371(A) vs the 33% Reservation for women all over the country which is a mandatory provision in the 73rd & 74th amendments 1992 under Art243(D)cl(3) and 243(T) cl(3). The Nagas are still confused and concern about the actual interpretation and its implication. I’d also like to express my humble understanding on the issue which is yet to be arrived at clearly and in a legally justifiable terms, which may even affect the very Naga identity in the future that would go beyond the immediate satisfaction of achieving the reservation objective.
It is a fact that the Nagas generally are fiercely independent in nature and emotionally attached to the land, their tradition and customary practices however archaic it may be. In the past too, the Ahoms, our immediate neighbor, during their 600 years of their reign in Assam had left the Nagas in their independent existence despite many conflicts between them. The British had also in their shrewd wisdom, avoided full subjugation and allowed them to live in their own way without much interference. At the time of creation of the 16th State of Nagaland, the National Law makers had wisely taken cognizance of the Nagas distinctive characteristics and their psyche and felt it pertinent to provide the protective provision of this unique feature in the Constitution under Art. 371 (A). The Nagas are guarantee with the right to manage and regulate their life according to their own genus in its own pace. The Nagas have taken this special constitutional provision as recognition of their distinctive and unique Identity and are proud of it by one and all. Any slightest apprehension of direct or indirect compromise or encroachment on this right would be considered as a threat to their very Identity.
This core sentiment has been hurt by the recent hasty action of the state government in amending the Municipal Act 2001, incorporating the 33% Reservation for women in the Urban Local Body (ULB) as per the prescribed norm envisaged under Art. 243(T) clause3, which provides reservation of seats in every Municipality for women which shall be not less than one-third of the total number of seats. In the absence of any established tradition or customary practices to guide, the state government had conveniently resorted to the general constitutional directive contain in the Art mentioned. Thereafter immediate conduct of election to the ULBs was announced to be held on 1st Feb.2017. The tribal Hohos and the Naga public were alarmed with this sudden move and appealed for more time for consultation with the stakeholders on its likely implication to the traditional and customary practices infringing the rights guaranteed under the Art. 371 (A).
It was unfortunate that the overwhelming appeal by the people for more in-depth understanding of the important issue for the Nagas but the public outcry was completely ignored by the state government. The matter was aggravated by the volte-face of the government from the tripartite agreement involving even the church leaders, for postponement of the election for two months and further consultation during that time with the stakeholders on the sensitive issue to all the Nagas. Undoubtedly giving women an appropriate political empowerment which was denied to the Naga women in the traditional setting is accepted as fair demand but the manner in which the government had maneuvered to complete the whole process was unusual. The people only wanted some time to digest its implication before it become irreversible.
This is certainly a mandatory provision to be implemented in all the ULBs all over the country. However, in view of the special provision of constitutional guarantee provided to the Nagas to continue enjoying their traditional and customary practices as envisages in the Art 371(A); an alternative method to sort out the issue could be possibly thought of. Because, it categorically stated that, “notwithstanding anything in this constitution:--no Act of Parliament’ shall be applicable …Unless the Legislative Assembly of Nagaland by a Resolution so decides’. In the light of the above wording in no uncertain term, the Nagas may not be wrong to adopt its own formula suited to the Nagas in the spirit of traditional uniqueness without the apparent infringement of the rights provided to the Nagas. That is not an illusion but logical inference for the Nagas to explore its possibility and applicability.
The people suspected ulterior motive on the part of the government for rushing into passing the reservation bill mechanically without digesting properly in the opposition-less Legislative Assembly. Thus not agreeing to the overwhelming demand and appeal from the public to have further dialogue with the stakeholders to dispense with any misgiving before going ahead with the poll was a clear indication of not genuinely concern about fulfilling the political empowerment to women nor in the interest of the people but main target is to get hold of the central fund before the yearend for obvious reason. Evidently so as in 2012, a similar move for reservation bill in the Assembly was unanimously rejected stating that it would amount to infringement of the rights provided in the constitution which considered as inviolable by the Nagas but found it appropriate to go ahead in Nov.2016, in the same legislative Assembly, without any visible change in the status and situation.
These are some of the searching questions the public wanted the state government to clarify before proceeding with the election. The argument about getting generous fund for development of urban areas from the central funding once the reservation process is completed could not convince the people without further scrutiny, if it compromises on their rights affecting every Naga of both the gender.
The cabinet had on 4th Feb.2017, curiously, decided to send a Memorandum urging the central government to initiate a constitutional amendment to this provision contained in Part IX-A, Art.243 (T) cl3. This is a meaningless exercise to buy time, as the process for any constitutional amendment is a very long drawn process and not likely to be considered for the state of Nagaland alone. In any case everyone knows that sending a Memorandum is not a solution to the current crisis between the people and the state government. Such an irrelevant action will only create further suspicion and mistrust.
The Naga civil societies are genuinely worried and concerned how such an Act would be a compromise to their rights and interests of the future of the Nagas.
But the adamant refusal to have the dialogue with the people compounded by the subsequent u-turn on the tripartite agreement was not expected form a person of authority of the government. It was the last straw to end the TRUST of the people on the present elected government which is supposed to take care of the welfare and protect the interest of the people. The public anger was spontaneous and uncontrollable leading into avoidable bloodshed and the tragic loss of innocent lives.
The mandatory constitutional provision, under the Art243 (T)cl3(74th Amendment 1992)say that;- not less than one-third (including the seats reserved for SC&ST women) of the total seats shall be reserved for woman. The main purpose of this general directive is to ensure adequate representation for the weaker sections like, the SC, ST and woman uniformly in all the ULBs in the country.
How compatible is the reservation provision with the Naga tradition and customary practices. On critical examination, a question may be asked whether an exception can be possible exempting the applicability of this provision in Nagaland state be justifiable in view of the overriding constitutional guaranteed to the Nagas under Art.371 (A) on any matter relating to the Traditional and customary practices, religious practices, administration of civil and criminal justice and the ownership of land, transfer and its resources. This is a comprehensive right given to the Nagas to protect preserve and regulate their lives in accordance with their traditions and customs. Though the municipality or Town Council is of modern Institution, it is established within the Naga territory and for the regulation of the lives of the Nagas, so it automatically attracts the right guaranteed. However, strict observance by the state government on the provisions relating to the Woman Reservation in Art.243 (T) clause(3), at the time of the last Amendment to the Municipal Act 2001, may have given an impression that the traditional and customary procedure is inadequate to take care of Legislative requirement in today’s situation. Nevertheless, the procedure adopted in moving the bill for 33 % reservation for women, and subsequent passing as an amendment to the municipal act was inconsistent with the spirit of the rights guaranteed to the Nagas. Because it is considered as interference to the rights provided. Sadly, the adoption of the amendment by a unanimous resolution in the assembly in November 2016 legitimized its applicability in the State of Nagaland unless a corrective measure is taken in reversing the Act. In that context it is felt that the state government may be the competent authority to legislate on it as deem fit to suit their system.
Definitely there is an urgent need to undertake the codification of the various Naga tribal customary laws and practices making it uniformly applicable to all the Nagas especially on common issues and to filter the archaic and irrelevant contents. The tradition and customary practices should grow and improve to suit the changing need of the day, otherwise they will become inadequate and irrelevant to the fast changing need of the time. It can be codified in the line of the British Common Laws which was literally the compilation of the tribal law practices, conventions and usages of their different tribal groups in the past.
We may, also look from a different angle at the constitution of the ULB on the composition of the members, power and responsibility. It will be comparable to the power and functions of ‘the Council of Elders’ in the village Republics of the past, from where the foundation of the tradition and the customary practice had been originated out of their tested experiences of life distinguishing the Nagas from the others. If the competency of the state Assembly is accepted, then a separate unique legislation can be adopted by reserving a certain number or percentage out of the total seats for the women in ULB organization as deemed fit suiting to the spirit of the Naga tradition. That will take care of preserving the sanctity of the constitutional guarantee provided to the Nagas at the same time enable the women to participate in decision and policy making body.
A reasonable measure empowering the women to enable to take part in the decision making body may be a departure from the traditional practices. However, their participation will be a real asset for the overall development and growth of the societies. The women activists today understandably, are not contented with the traditional role. They have been asserting the last few years to implement the constitutional mandatory provision of reservation of 33% seats in local urban bodies. To be fair to the demand, equipped with better education (pen is mightier than sword) and with the economic emancipation the women sensibly demand political empowerment asserting that the decision making responsibility is no monopoly of men, needs to be taken positively. It is a reasonable voice which will rather accelerate healthy holistic growth of the society. Unfortunately, the genuine voices of the women have been once again sidetracked in the controversial hustling of the tribal Hoho and civil society vis-à-vis the state government which has emanated out of this genuine issue but now it becomes unsure when will it come alive again.
The need of the hour is that every sensible citizen must look at the event with calmer reflection and with restrain. We should not allow the event to divide further among the Nagas nor should allow relegating the reasonable and legitimate demand of the Naga women in larger interest of the society. At the same time we can not in any case accept erosion of the rights being protected through the special provision which is the unique Identity.
The unfortunate death of three persons must be generously compensated by government but regret to observe that so far no such decision seems to have made in this regard. In any case, their sacrifice should not go in vain. It symbolizes the Naga freedom and unity for a purpose and willingness to sacrifice in defending a noble common cause. it has once again renew faith in our common strength and reaffirm that the ultimate strength lies with the people which can bring positive change that is required and the sincere voices of the people must be respected by all.
