Pride and Prejudice: The Naga Saga

Introduction

The reservation for women in Urban Local Bodies has become an issue that has rocked the State of Nagaland. Social Organizations and individuals have voiced their protest against the reservation for women, averring that the same is against the customary practices and laws of the Nagas. The common ground for the protest is that the reservation for women in Urban Local Bodies is in violation of Article 371A of the Constitution of India which protects the customary practices and laws of the Nagas. 

Why Nagaland given special status?

By the 74th Amendment, Parliament incorporated Part IXA in the Constitution of India. This Part of the Constitution is in relation to the Municipalities and comprises of Articles 243P to Article 234ZT. Article 243T, in this Part, provides for the reservation of one-third of the total number of seats to be filled by direct election in every Municipality, for women. The said Article then delegates to the State Legislatures the power to enact Laws to give effect to the reservation.

But states of Meghalaya, Nagaland and Mizoram were ironically kept out of its purview, ostensibly because these states had vibrant traditional institutions. The exemption showed complete ignorance of the politics of the three states and was based on the premise that tribal communities practice an egalitarian way of life where men and women had equal rights. 

Nothing could be further from the truth and it clearly reflects the lack of understanding of traditional governance systems before proposing the PR Bill and taking this critical decision.

Are reservations for women violate provisions of the Article 371 (A) of the Constitution of India?

It needs to be understood is that, the reservation for women has not been brought about by an Act of Parliament or an Act of the State, but through a constitutional provision viz, Article 243T.

Those opposed to the reservation for women cite their reliance on the protection afforded by Article 371A of the Constitution of India. One cardinal principle in the interpretation of Status is that, the provisions of Law must be read in the entirety and not on piecemeal basis. Article 371A begins with a non-obstante clause, which most opponents of reservation for women vehemently quote time and again. For a proper understanding of the said Article, the relevant portion is quoted hereunder.

“[371A. Special Provision with respect to the State of Nagaland:-

(1) Notwithstanding anything in this constitution:-

   a) No Act of Parliament in respect of-

        i) Religious or social practices of Nagas,

       ii) Naga customary law and procedure.

      iii) Administrative of civil and criminal justice involving decisions according to Naga                    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 ”

• Referring to the introductory sentence “Notwithstanding anything in this Constitution”, most of us have the opinion that this sentence has application to all laws framed by Parliament. However, a reading of the entire Article would show that this sentence is qualified and relates to firstly, Acts of Parliament and secondly the said Acts of Parliament in relation to the subjects mentioned in Clauses (i) to (iv). The emphasis in this Article is therefore, “Acts of Parliament”. Acts of Parliament are passed under the enabling Articles of the Constitution.
• The argument with regard to reservation for women and customary practices and laws vis-à-vis Article 371A must therefore be understood in the constitutional context. Article 371A is in relation to the Acts framed by Parliament and its ambit does not cover the Articles of the Constitution itself. By the very incorporation of Part IXA and Article 243T thereof, in the Constitution of India through the 74th Amendment, the issue of Women’s reservation in Urban Local Bodies is no longer debatable in relation to Article 371 A.
• Whether or not women’s reservation in Urban Local Bodies violates Naga customary practices and laws is itself a debatable issue. However, with the incorporation of 243T in the Constitution of India, the said debate has been effectively removed from the purview of Article 371A. This would mean that those who protest against women’s reservation as violative of Article 371A of the Constitution of India, are actually protesting a non -issue.
• In the year 2012, the State Assembly adopted a resolution to exempt itself from the purview of Part IXA of the Constitution of India. But in the scheme of the Constitution of India, no State Legislature has the competence to exempt itself from any Part of the Constitution of India.
• State Government with the introduction of the Nagaland Municipal Council Act 2001 enforced the Article 243T. But The misconception in the minds of the people in general is that, by the passing of this Act, the State itself provided for reservation for women in Urban Local Bodies. The bottom line is that, whether it is the current Government or any other succeeding Government, the implementation of Article 243T is a Constitutional mandate. There is a huge distinction between a Constitutional mandate and a Statutory mandate.
• ULBs, are statutory institutions/bodies that are to function as organs of the state (local self-government) in accordance with the statutory provisions, and that the customary practice has no role in the functioning of ULBs.
• Article 371 (A) would not have the effect of validating all the customary laws/practices or usages, he at the same time, reminded that the customary laws would have to be tested by the provisions of the Constitution (Part III).

In the larger context, it must be appreciated by all of us that the State Government has a duty to carry out its Constitutional as well as Statutory mandates and any failure in this regard would be tantamount to a breakdown of the Constitutional machinery.

Conclusion

All the social organizations and individuals who are opposing women’s reservation in Urban Local Bodies have to objectively examine the matter afresh. As citizens of the country and the State, we are bound by the Constitution and the laws framed there under. Our objections and protests in relation to issues of governance must be based on the principles of the Rule of Law. Every society must progress and our society has progressed from the villages to towns and cities. In the process, we have adopted the democratic form of Government with elected representatives. We have undertaken a voyage of development and growth. The customary practices and laws of the Nagas is still protected and we have institutions in this regard in the villages. Many of the institutions that we have adopted, strictly speaking, are alien to the customary practices and laws of yesteryears. In addition to the proposition that reservation for women is not a subject covered by Article 371A of the Constitution of India, it is perhaps time for an attitudinal change in our mindsets. Reservation for women has come to stay whether we like it or not and we should bury our difference and look to the future.


References
The Hindu
Eastern Mirror
Morung Express