1. Article 243-T of Part IX -A was inserted in the Constitution of India by the 74th Amendment in the year 1992 providing 33% women reservation for a period of 10 years to empower women belonging to scheduled castes and scheduled tribes in Municipalities and further extended for a period of 10 years in 2012 and will come to an end in 2022 unless further extended. The 74th amendment came into force on 1st June 1993.
2. In the year 2001 Nagaland Municipal and Town Council Act 2001 was passed in the Nagaland Legislative Assembly, however, 33% women reservation which is a mandatory provision in article 243-T Part IX-A was not included . The 1st election under the Municipal and Town Council Act 2001 was conducted in 2004 in the State without 33% women reservation. Mokokchung Town did not participate on the ground that unless the provision for taxation of land and building are omitted/deleted from the Act, they would not allow the municipal election. The rest of the State participated in the election and functioned till 2009. Prior to 2001, the Nagaland State was following the Assam Municipal Act for the town committees of the State.
3. Miss Khetoli filed a PIL in the Gauhati High Court, Kohima Bench calling the court’s intervention to include 33 % women reservation as provided by the Constitution of India under article 243-T of Part IX -A. The Hon’ble High Court in a judgement in the year 2005, directed the State Govt. to include 33% women reservation in the Municipal and Town Council Act 2001. The State Govt. accordingly implemented the High Court Judgement by amending the Municipal & Town Council Act in 2006, and 33% women reservation was included in the Act. However, since the tenure for 2004 election is up to 2009 the women reservation of 33% was not immediately implemented.
4. The Naga Mothers Association, Eastern Naga Women Association and Naga Women Hoho, Dimapur gave a representation to the Chief Minister to implement the Court order. However, the Naga Hoho and other tribal bodies opposed the 33% women reservation and elections to ULBs could not be conducted in 2009, and the women groups were asked to bring court order to implement their demand. Accordingly, Writ Petition in the Gauhati High Court was filed by women groups and the Single Bench of the Gauhati High Court vide order dated 21.10.2011, directed the State Govt. to complete the process of election by 20-01-2012.
5. Government appealed to the Division Bench, and on 31.07.2012 the Division Bench in a judgement set aside the order of the learned Single judge by order dated 31.7.2012.
6. The Govt. on its part constituted a Select Committee headed by the then Parliamentary Affairs and Planning & Co-ordination Minister and as per direction of the then Chief Minister and Legal Advisor recommended that article 243-T infringed article 371-A, and the matter, was referred to the Committee to scrutinise Parliamentary Laws for application to Nagaland and the Committee took up the matter and gave its recommendation to the Assembly. Accordingly on 22nd September 2012, the Nagaland Legislative Assembly passed a resolution moved by the then Urban Development Minister that the article 243-T of Part IX-A is not applicable to State of Nagaland on the ground that it infringes article 371-A.
7. The women group challenged both the judgements of the Division Bench, and the Assembly resolution in the Supreme Court by filing a Special Leave Petition (SLP) in 2014 and the Supreme Court admitted the same and stayed the decision of the Division Bench pronounced on 31.07.2012. The Supreme Court admitted the SLP of the women group on 5th April 2016 and the argument put forward in the affidavit of the SLP stated that 74th amendment and article 243-T supersedes article 371-A.
8. Senior Advocate in the Supreme Court opined that the best option is to go back and arrive at an amicable agreement with the women group to withdraw the case, since the State had also implemented the Act by calling the ULB elections in 2004. The Assembly resolution was merely an expression of intention to do something.
9. The Govt. had a series of discussion and dialogue with the various stake holders such as Joint Action Committee on Women Rights (JACWR) representing various tribal women organizations for as many as 4 times, and offering them nominations with voting rights. But the women group refused to take nominations, and insisted to have elections as per the provision of the article 243T of the Constitution.
10. The Govt. on its part also have conducted series of consultations with Naga Hohos, ENPO and other tribal hohos. The Consultative meeting was call on 16.11.2016 at Capital Convention Centre with various tribal organizations and to invite necessary suggestions in relation to Municipal and Town Council Act 2001, including 33% women reservation. The Ao Senden suggested the removal of the provision for taxation of land, and buildings, which was accordingly complied by the Govt. The Angami Public Organization (APO) suggested to remove the provision for reservation of seats for Scheduled Castes on the ground that Nagaland State do not have scheduled castes, which was accepted and omitted. It was also agreed that for the proposals for levying of taxes by the Municipal and Town Council and should not be by the Govt. but by the respective Municipal and Town Councils, and Govt. should only be the approving authority was also accepted.
11. On 05.12.2016 in the meeting with the tribal hohos represented by, Angami, Chakhesang, Zeliang, and six tribes of ENPO held in the official residence of Chief Minister, the matter was explained to the 9 (nine) tribes regarding the impending danger of the SLP pending in the Supreme Court, which may lead to the adverse interpretation of article 371-A by the Supreme on account of this women reservation issue.
12. On 17/12/2016 the meeting with the Naga Hoho and ENPO attended by the Ministers and Parliamentary Secretaries in the private residence of Hon’ble Chief Minister at Dimapur, the issue was reiterated including all the impending dangers that may come about, if the Supreme Court give adverse ruling and interpretations of article 371-A. The hohos asked for five minutes separate time. However, since the Naga Hoho, ENPO and other tribal hohos were meeting the NMA and JACWR on 19.12.2016, they were requested to communicate their decision. However, the tribal hohos could not convince the NMA and JACWR to withdraw the case, or to accept the nomination with voting right. The options before the Govt. become very limited, either to wait for the Supreme Court Judgement or to pre-empt the decisions. The options are:-
I. To wait for the Supreme Court judgement.
II. To pre-empt Supreme Court decision by going ahead with the ULB election.
The Government had several rounds of discussion and opted for the Option-II to pre-empt the Court decision by bringing Amendment in the Municipal and Town Council Act 2001 by incorporating 33% Women Reservation when all options to bring about amicable resolutions failed. The Election Commission was accordingly asked to proceed with the conduct of ULB election. The Election Commission accordingly proceeded with the Notification for the conduct of the ULB election. This decision on the part of the Government is aimed at protecting and preserving the sanctity of Article 371-A and thereby avoiding any interpretation of Article 371-A by the Court.
13. The Government intention was solely to protect the article 371-A and decided to go ahead with the elections, but will not force it upon the people.
14. The meeting between the Government and Joint Coordination Committee (JCC) on the intervention of Nagaland Baptist Church Council (NBCC) came up with the statement on 30/01/2017 enclosed. Reading between the line the joint statement was not the final, but subject to the decision of the cabinet and State Election Commission. As a Government constitutional obligations cannot be avoided. Therefore, keeping in mind the constitutional obligation on the one hand and the wishes of the people on the other hand, the State Cabinet recommended municipal councils and town councils where there was no opposition from public to go ahead with polls as scheduled (1st February, 2017) and defer those municipal councils and town councils where people/public had objection for two months.
15. The Govt. going ahead with the elections was necessitated because of the Writ Petition filed by the JACWR in the Supreme Court.
16. The State Govt. of Nagaland is a tribal population and the article 243-T being mainly aimed for empowering scheduled castes and scheduled tribes women, Nagaland is not exempted. Nagaland State does not fall under sixth schedule or scheduled areas where the Act is exempted. To go for election now without 33% women reservation is not permissible under the constitution. If the people do not want municipalities and towns councils in the State, it is possible. Since the women group have submitted withdrawal Petition of their SLP from the Supreme Court the people can decide whether to have municipalities and town councils in the State of Nagaland or not.
17. Now the options are:-
(a) Wait for the Supreme Court Judgement if the withdrawal of the SLP filed by the JACWR is not accepted.
(b) Have no ULBs in the State
OR
(c) The State Govt. in view of the recent agitation and violence, take up the issue with the Govt. of India to exempt the State of Nagaland from the provisions of Part IX-A in the line with the provision of Part IX of the Constitution of India.
The Government is of the view that even after the case is withdrawn, India being a free nation, any person, lawyer or woman activist, not necessarily a Naga woman, may file again a similar petition. In that event, it will be back to square one. If the State Government and all the stakeholders cannot arrive at an amicable resolution of this issue at the earliest, the best option appears to be to seek exemption of Nagaland from Part-IXA of the Constitution, which contains a mandatory provision under Article 243T for 33% women reservation in ULBs, which will put to rest the issue and avoid further misunderstanding among the people.
