I pen this my individual opinion and understanding thoughts on the given subject with a view to dispel some misplaced and misconstrued understanding and interpretation on the issue.
I am aware of the admitted fact that in the realm of understanding and interpretation of written Constitution and the statute laws framed thereunder individual opinions invariably differs. However difference of opinion is the dynamism and strength of democratic parliamentary institutions in a Country like India whose basic Constitutional tenets and ideals are firmly rooted in the long arms of rule of law and the principles of natural justice. The freedom of Speech and Expression which is guaranteed in the Part III of the Constitution stands formidable so long as it does not offend or violate the procedure established by law under the Constitution. With this express and non-derogable mandate of law this small write is attempted by me as a pristine and unspoiled opinion of lawyer in the legal profession. I am in circumspect anticipation that the readers and friends will find more facts and details which this elementary write up tries to explore and project.
In India Constitution is Supreme. All the organs of the State viz. Legislative, Executive and Judiciary derives their power and function from the Constitution, as such the Legislature makes the laws, the Executive implements the laws and the Judiciary interprets the Laws. The Judiciary more particularly the Hon’ble Supreme Court and Hon’ble High Courts are accorded extraordinary power of Interpretation of Constitution in its provisions under Article 32 and 226 itself.
Article 371A a special provision with respect to the State of Nagaland was inserted in Part XXI of the Constitution of India by Constitution(13th Amendment) Act, 1962 and in pursuance to 16 Point Agreement, the State of Nagaland as 16th State under Indian Union was created by the State of Nagaland Act, 1962 (Act No. 27 of 1962). It is pertinent to note that Article 371A is intended to be special provision as the very word “Special” is given in the Part XXI of the Indian Constitution itself.
Article 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 the Nagas,
(ii) Naga Customary Law and Procedure,
(iii) Administration of Civil and Criminal justice involving decisions according to Naga Customary Law.
(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:
The introductory sentence of Article 371A begins with Notwithstanding anything in this Constitution this very sentence is a erroneously understood by most of us (Nagas) as non application of all the Laws and Acts framed and passed by the Parliament including the other Provisions of the Constitution of India itself. However, bare reading of the very sentence manifestly reveals that Article 371A shall apply to Acts of Parliament in relation to the subjects mentioned in the clauses (i) to (iv) of the said Article only.
It is observed that Article 371A which we Nagas believed to be sacrosanct and inviolable also suffers from its own inherent flaws from the very threshold which creates difficulties and confusion while interpreting its clauses it is seen that no definition or meaning is given with regard to Religious and Social practices of the Nagas and Naga Customary Law and Procedure including Ownership of Land and its Resources. It must be understood by everyone that Article 371A is a protective Provision but not a enabling Provision, it is a saddening inherent flaw that the Nagaland Legislative Assembly was not accorded power to legislate and make its own law in the special Provisions of Article 371A it is seen that no amendment has been inserted so far in the list III of the Seventh Schedule known as State List which is enumerated in Article 245 read with Article 246, 247 and 248 of the Constitution
Situated in the aforesaid facts and circumstance interpretation of Article 371A is left exclusively to the jurisdiction of the Hon’ble Courts to interpret its provisions and clauses. In a recent case W.P(C) No. 83(K) of 2018 decided on 09.01.2019, the Hon’ble Gauhati High Court Kohima bench while interpreting Article 371A has categorically made an observation that Article 371A deals with the applicability of parliamentary enactments in the state of Nagaland, but not with the practice or validity per se of Customary Laws and Procedure this interpretation and observation of Single Judge was affirmed by the Hon’ble Division Bench in Appeal (W.A(C) No. 3(K) of 2019) in its Order dated 21.9.2022, it is stated that the writer has appeared in the Appeal Petition as Senior Counsel for the state of Nagaland.
The supercilious and flagrant argument that The Nagaland Municipal Act 2001 as amended up-to-date infringes Article 371A of the Constitution appears to have incurably vague and manifestly arbitrary based on wrong premises of law and therefore speculative from the very foundation. It is understandable that Article 371A relates to Acts framed by parliament, however its ambit does not subvert or overturn the same other Provisions of the Constitution. Therefore, by the 74th Ammendment which came into effect on 01.06.1993 Parliament incorporated Part XA in the Constitution of India. This part of the Constitution is in relation to Municipalities, and comprises of Article 243P to Article 243ZT, under the provisions of the aforesaid Articles of the Constitution, the State of Nagaland has enacted the Municipal Act 2001, as such the deriving source of power for enactment of Nagaland Municipal Act 2001 is from the Constitution itself. It is settled principle of law that a certain Constitutional provision cannot be thrown to circumscribed another Provision of the same Constitution. It would be a travesty of justice and affront to the edifice Constitution if the citizen of this country resort to such polarisation without any legally tenable bases. As citizens of the country and the state, we are all bound by the constitution and the laws farmed thereunder.
L. Moayanger Imchen
Senior Govt. Advocate