Issues of concern prompted me to express my opinion on the civic polls and women’s reservation. After I wrote the article captioned “The debate on reservation for women” some office bearers and members of the NBA, published an article in the name of the NBA expressing their opinion on reasons why Part IXA of the Constitution of India does not apply to the State. The said article acknowledged that the civic elections has no relation to Article 371A of the Constitution of India but that in view of the exemption contained in Article 243ZC, Part IXA of the Constitution of India did not apply to the State. Since the debate had now taken a different turn, I wrote another opinion captioned “The continuing debate on women reservation”. In this opinion I expressed my view as to why the State of Nagaland is not exempted from Part IXA of the Constitution of India. This article was published in the Morung Express on 29-01-2017. As a practitioner in the field of Law my sole interest in writing my opinions was and is to raise awareness of legal issue. On 09-02-2017 an article captioned “Clarification of the Nagaland Bar Association” was published in the local media through the Vice-President and General Secretary of the NBA. I was appalled and shocked to read the contents of the said clarification in relation to me. The credibility of my opinions was sought to be undermined not by questioning the legal premise of my opinion but by referring to my engagement as Senior Additional Advocate General as “Extra Constitutional”. It is extremely unfortunate that the debate has now degenerated into personal attacks by certain members of the Bar. Aside from the general public, I would earnestly request the members of the Bar to reflect on the direction in which the Bar is heading.
In legal parlance “Extras Constitutional” means outside the law and/ or something or somebody which does not have legal sanction. In the scheme of the Constitution of India, there is a phrase referred to as “Constitutional Authority” which in relation to a State refers to entities like the Governor, Judges of the High Court and Advocate General etc. Apart from the Constitutional authorities, the provisions of the constitution empowers the Union and the States to make appointments to various categories of services. Just because this categories of services do not fall under the classification of “Constitutional authorities”, would it be proper for any person or organization, much less the Bar, to classify this services as extra constitutional? If the argument in the clarification of the Bar is accepted, it would mean that all the roughly One Lakh Fifty Thousand employees of the State hold “Extra Constitutional” service. This proposition is ridiculous. The services under the Union and the State may not be “Constitutional Authorities” but at the same time they are not “Extra Constitutional” as wrongly projected by certain members of the Bar. In respect of the Additional Advocate General one has only to refer to the decision of the Supreme Court of India reported in 2004 (2) SCC page 267. In this case, on a challenge laid to the appointment of the Additional Advocate General, the Supreme Court has held that, though the Addl. A G is not a Constitutional Authority, the appointment as such is within the competence of the State under Article 162 of the Constitution of India. Therefore when the appointment of the Addl. A.G is made under Article 162 of the Constitution of India, I fail to understand as to how my learned friends in the Bar can say that my appointment is “Extra Constitutional”. I am surprised and astonished that it is none other than the learned members in the legal fraternity who are making such off the cuff, uninformed and ignorant statements. They cannot hold anything against me if I questioned their motives.
I am aware that the articles published in the name of the NBA is the opinion of a few members and office bearers. The articles published also acknowledge that the opinions expressed are those of certain members alone. If that be so, I fail to understand with what authority and on what basis, the statements keep appearing in the name of NBA. As members of the legal fraternity, each of us must ensure that our conduct does not detract from the ideal of the legal profession being a noble profession.
Kakheto Sema Sr. Addl. Advocate General Nagaland
