The True Implications of Article 371 (A) and the Present ULB Imbroglio

Kaka D. Iralu 

That Nagas could live under the dictates of their own customary laws “in respect of their religious and social practices…” administration of civil and criminal justice”…and absolute rights to “ownership and transfer of land and its resources” is clearly written in article 371 A of the Indian Constitution. These rights were granted after stating the words: “not withstanding anything in this constitution”. Now, linguistically and grammatically speaking, no one can question that “Not withstanding” means “In spite of”. Therefore we can paraphrase the above quoted word as: – In spite of whatever may may already be written in the Constitution of India, “no acts of parliament shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.” i. e. with reference to the rights granted in article 371 A.

If we look at all these rights and their safe guards, at a cursory glance, stupendous rights seem to have been granted by India to Nagaland. One can even argue that India has already recognized Naga sovereignty and independence over their own land and resources and have also recognized Naga rights to be ruled by their own laws.

However, if one continues to read the other words of Art. 371 A, the next sentences counter nullifies all that has been granted at the beginning of the said Article. The rights discussed so far, comes under clause (a) of Article 371A. Clause (b) of the same article begins with the words:

“The Governor of Nagaland shall have special responsibility with respect to law and order in the State of Nagaland for so long as in his opinion internal disturbances occurring in the Naga Hills-Tuensang Area immediately before the formation of that State continue therein or in any part thereof and in the discharge of his functions in relation thereto the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken:

Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this sub-clause required to act in the exercise of his individual judgment, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in the exercise of his individual judgment. (Under linings mine)

Under the provisions of this “Governor’s rule of Law”, the Governor (s), have promulgated heinous laws like The Assam Maintenance of Public Order Act 1953, the Assam Disturbed area Act 1955 and The Armed Forces Special Powers Act 1958 and many other acts which turned Nagaland into a killing field from 1954 to the present.

The reader should note therefore that the second part of Article 371A counter nullifies all the special provisions granted in the fist part of the article. In this counter nullifying act, the following points should be noted from the just quoted powers of the governor of nagaland:

1. The Governor’s opinion is final in deciding whether internal disturbances prevail in the “Naga Hills Tuensang Area.”
2. The Governor can make his independent decision even “after consulting the council of Ministers.”
3. The Governor “shall not be called in questioned on the grounds that he ought or ought not to have acted in the exercise of his individual judgment.”

The ultimate question therefore is the following: What special provision is article 371 A when, behind article 371A stands a Governor whose actions in running law and order cannot be questioned by anybody as to whether “he ought or ought not have acted in the exercise of his individual judgment.” Isn’t there a case here where the Governor of Nagaland is higher then the Legislative Assembly of Nagaland and even higher than the Constitution of India?

As for all the special provisions of land ownership and its resources, when we tried to extract our oil as well as produce our own electricity, we were told by some Indian legal experts that other article of the Indian Constitution and schedules have superseded these land ownership rights and have therefore nullified them. Some special rights to land ownership and its resources under Article 371 A indeed!

Therefore, Article 371A at a cursory glance indeed look like a golden casket encrusted with many intricate designs that is delightful to the eyes. But inside the casket is a poisonous snake which will leap out and bite any one who opens the casket lid. But still, many Nagas continue to be fooled by the outer trappings of this golden casket. They think it is a most precious gift from India to Nagaland which has even been enshrined in the very bosom of the Constitution of India. However, any wise Naga, far from being mesmerized by it, should throw away this dangerous casket because it contains a most poisonous snake inside.

In conclusion, the present crisis in Nagaland over the ULB elections issue is not whether the NPF party still hold the majority in the Legislative Assembly of Nagaland or not. It is also neither an issue of whether T. R. Zeliang is a competent C.M. or not. The real issue and question is: Whether the Nagas will live under the dictates of a foreign Constitution (of India), or live under their own Yehzabo and Customary Laws? Three young Nagas have again laid down their lives for this issue. As for all other living Nagas, what they decide will affect all Nagas of today as well as all future citizens of Nagaland. Finally, let me end by quoting James Russell’s great patriotic hymn “Once to every man and nation.”

“Once to every man and nation, comes the moment to decide. In the strife of truth with falsehood, for the good or evil side…And the choice for ever twixt (between) that darkness and that light (Christian Worship Hymnal, p.558).

Which side will Nagas choose? Will it be “truth and light” or “falsehood and darkness?