The present debate arises in the context of the criteria “purportedly” framed by the Eastern Nagaland Peoples’ Organisation for the constitution of the proposed Frontier Nagaland Territory Interim Council.
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At the heart of the present debate lies a fundamental constitutional question: can eligibility criteria, framed without any traceable legal authority, govern access to a body performing public functions? This issue is not merely technical. It concerns the limits of power, the supremacy of the Constitution, and the integrity of governance itself. It arises in the context of the criteria “purportedly” framed by the Eastern Nagaland Peoples’ Organisation (ENPO) for the constitution of the proposed Frontier Nagaland Territory Interim Council. It therefore becomes necessary to examine not only the content of these criteria but also the constitutional and legal framework within which they seek to operate.
This analysis proceeds on the basis of the criteria as they presently exist and does not extend to any future legislative or constitutional arrangements that may emerge. The focus is confined to whether the current framework, as it stands, conforms to established constitutional principles. For that purpose, the inquiry must first be situated within the broader constitutional setting of the State.
Nagaland itself is a creation of the Constitution, brought into existence through the Thirteenth Amendment in 1962. Article 371A confers upon the State a distinctive constitutional status, safeguarding Naga religious and social practices, customary law and procedure, and the ownership of land and its resources. This provision reflects a carefully structured form of asymmetrical federalism, recognising indigenous systems while remaining firmly anchored within the supremacy of the Constitution. The scope of this provision, however, must be properly understood before it is invoked in justification of any regulatory framework.
Article 371A is protective in character. It preserves certain customary practices and institutions but does not create an independent source of legislative or executive authority for non-statutory bodies. Customary governance, though constitutionally recognised, operates within the discipline of the Constitution and cannot override its fundamental guarantees. In particular, the mandate of equality under Article 14 continues to apply to all exercises of public power. Thus, even within a framework that respects customary autonomy, constitutional limitations remain fully operative. It is within this balance that the present criteria must be assessed.
When the criteria “purportedly” framed by ENPO are viewed in this constitutional context, their functional character assumes importance. The Interim Council is envisaged as laying the “foundational governance structure” of the proposed Frontier Nagaland Territory. Such a role cannot be regarded as purely internal or private. The preparation of a governance framework directly shapes access to institutional authority and therefore bears the attributes of a public function. Once this character is recognised, the criteria governing participation in such a body necessarily attract constitutional scrutiny.
In determining whether an action falls within the domain of public law, constitutional jurisprudence looks beyond form to substance. A framework described as advisory may, in effect, operate as determinative if it controls access to a governance structure. Where such criteria operate as a de facto filter on participation and form the basis upon which participation is decided, their practical effect is indistinguishable from binding norms. The absence of formal enforcement does not diminish their impact. Consequently, any such framework must satisfy the requirements of fairness, reasonableness, and non-arbitrariness that flow from Article 14.
This brings the inquiry to a more foundational level, namely the source of authority from which these criteria derive their legitimacy. In constitutional law, any rule affecting rights or access must be traceable to a recognised legal source, whether constitutional, statutory, or executive. In the present case, no enactment of the Nagaland Legislative Assembly creates the Frontier Nagaland Territory or authorises an Interim Council. No parliamentary statute provides a governing framework. Nor is there any delegated or executive instrument that empowers ENPO to prescribe eligibility criteria. The Memorandum of Agreement underlying the proposal remains, in legal terms, a political arrangement rather than a binding norm of law. However, even if the Memorandum is taken at its highest, its contents require careful scrutiny.
On a plain reading of the Memorandum of Agreement, the role assigned to ENPO is limited to recommending names in consultation with the respective Tribal Councils, which are thereafter submitted to the State Government for approval and nomination by the Governor. The power of constitution of the Interim Council thus vests in the Governor, acting within the constitutional framework. The Memorandum does not confer upon ENPO any authority to prescribe eligibility criteria or to regulate access through binding or exclusionary conditions. The function assigned is consultative and recommendatory in nature, not regulatory.
The implications of this distinction are significant. A recommendatory role does not carry with it the power to create normative conditions governing eligibility. To treat such a role as including the authority to prescribe criteria would be to enlarge the scope of the Memorandum beyond its terms. Any attempt by a body entrusted only with consultation and recommendation to impose preconditions that operate as filters on participation amounts to an assumption of authority that is not traceable either to the Constitution or to the Memorandum itself.
The absence of such authority has further consequences. A framework that is not anchored in any recognised source of power assumes the character of an extra-legal instrument lacking binding legal force. When such an instrument seeks to regulate access to a body performing public functions, it operates outside the structure of constitutional governance. In effect, it attempts to impose conditions without authority, thereby raising serious concerns of legality and legitimacy.
This also necessitates a careful distinction between internal associational autonomy and the regulation of public institutions. While organisations such as ENPO are free to frame internal rules for their own functioning, those rules cannot extend into the domain of public governance. Once criteria determine access to a governance structure, they cease to be internal and become subject to constitutional standards. Legitimacy derived from representation or social acceptance cannot substitute for legal authority within a constitutional order.
It is at this stage that the possible justifications for such criteria may be considered. It may be suggested that they arise out of necessity in the absence of statutory regulation, or that they reflect customary practices, or that they are merely advisory in nature. It may also be argued that they are framed in good faith, with the consent of stakeholders, and with a view to ensuring administrative efficiency. However, each of these contentions, when tested against constitutional principles, proves insufficient.
Necessity cannot legitimise the exercise of power where no authority exists. The absence of legislation does not create a zone free from constitutional control. Customary practices, though respected, cannot override fundamental rights. A measure described as advisory does not escape scrutiny if it has real and practical consequences. Consent cannot validate illegality, and good faith cannot cure the absence of power. Administrative convenience, however desirable, cannot override the guarantees of equality and fairness. With these defences addressed, the inquiry must turn to the substance of the criteria themselves.
The content of the criteria reveals further constitutional infirmities. The requirement of a minimum educational qualification, for instance, lacks a demonstrable nexus with the functions of the Interim Council. It risks excluding individuals who possess customary authority and community legitimacy but do not meet formal academic thresholds. Such exclusion is difficult to justify within a constitutional framework that recognises plural forms of leadership and knowledge.
The prescribed age limits raise even more direct concerns. They introduce a classification that must, under Article 14, be justified by an intelligible differentia bearing a rational nexus to the object sought to be achieved. No such nexus is apparent. The criteria do not explain why participation in the Interim Council must be confined to a narrow age band, particularly in a context where governance may draw upon experience, customary knowledge, and community leadership across generations. The exclusion is therefore substantive rather than formal, disqualifying otherwise capable individuals solely on the basis of age without regard to their actual ability or contribution. Moreover, the restriction fails the test of proportionality, as it is neither necessary nor the least restrictive means of achieving any legitimate objective. When combined with other conditions, the age requirement contributes to a layered and cumulative exclusion that significantly narrows participation, thereby engaging the doctrine of manifest arbitrariness. In the absence of statutory backing or demonstrated functional necessity, such a restriction cannot be sustained under Article 14.
A similar lack of clarity characterises the professional and knowledge-based criteria, which are framed in broad and undefined terms. The absence of objective standards introduces a degree of discretion that is susceptible to arbitrary application. The functional requirements, emphasising technical and administrative skills, further reinforce a technocratic model that may not align with the plural and customary nature of governance recognised under Article 371A.
These concerns are further illuminated when viewed against comparative constitutional practice. Autonomous bodies established under the Sixth Schedule across northeastern India follow an inclusive model grounded in broad-based participation. Eligibility conditions are minimal-at par with nationwide framework given by the constitutional mandate, and representation is structured through open and participatory processes rather than restrictive pre-selection. This reflects a consistent constitutional preference for inclusivity in governance.
In contrast, the ENPO criteria introduce multiple illegal layers of unreasonable restriction, thereby narrowing access in a manner that departs from this established “nationwide” approach. The framework also vests ENPO with powers of scrutiny, rejection, and final decision-making. Any assertion of finality, however, cannot override the principle of judicial review, which forms part of the basic structure of the Constitution.
In this context, the availability of judicial remedy assumes significance. Individuals who are aggrieved by the illegality and unconstitutionality of the eligibility criteria retain, under the Constitution of India, an unqualified right to seek redress before a court of law. Such recourse enables affected persons to invoke the jurisdiction of constitutional courts for the enforcement of their fundamental rights, including the right to equality and fair consideration. The existence of a framework that operates without legal authority and imposes exclusionary conditions provides a justiciable basis for judicial intervention, including the issuance of appropriate writs to quash or restrain the impugned criteria.
The maintainability of such a challenge is equally clear. Courts exercising jurisdiction under Article 226 are empowered to examine the actions of anybody performing public functions. The absence of formal statutory status does not preclude scrutiny, as the inquiry is determined by the nature of the function rather than the identity of the authority.
It may be contended that no individual possesses a right to be selected to such a body. That proposition is unexceptionable. However, the Constitution guarantees a right to fair and non-arbitrary consideration. Any process governing access must therefore conform to minimum standards of legality, reasonableness, and equality.
Viewed in its entirety, the framework produces a structure of exclusion that is both procedurally and substantively flawed. The absence of legal authority undermines its very foundation, while the content of the criteria reinforces that infirmity through arbitrary and disproportionate restrictions.
The issue, ultimately, is not one of intent or aspiration, but of constitutional discipline. The Constitution does not permit the regulation of access to public governance through norms that lack legal authority and fail to meet the standards of equality.
The conclusion, therefore, follows with clarity. Criteria that are not grounded in law, and which operate in a manner that excludes without justification, cannot be sustained. If the proposed governance structure is to command legitimacy, it must rest upon a foundation that is not only politically acceptable but constitutionally sound.
PS: Recently, the ENPO declined nominations of candidates put forward by their respective tribal bodies from certain tribes for the FNTA Interim Council, citing eligibility criteria.
Visajing Naga
The Eastern Alliance