Veteran Naga politician Dr. S.C. Jamir who is also the only surviving member of the erstwhile Naga People’s Convention (NPC) that signed the 16-Point Agreement with the government of India on July 26,1960, has come out with explanation of Article 371A Clause (1)(b) in the agreement.
Dr. Jamir, who is also four-time chief minister and ex-Governor of Goa, Maharashtra, Gujarat and Odisha reiterated that Article 371A(1)(b) of the Indian constitution provides special responsibility to the Governor of Nagaland over action to be taken on matters of law and order by exercising his individual judgment.
He said the conditions for invoking the clauses of Article 371A arose if internal disturbances occur in the Naga Hills-Tuensang Area immediately before formation of the state of Nagaland continue therein or any part thereof and that (a) the governor is obliged to consult the council of ministers but “entitled to exercise his individual judgment as to the action to be taken.”
Further, Dr. Jamir explained that such an arrangement of exercise of power by the governor would continue to exist, “till the president of India exercises powers as per the second proviso to Article 371A(a)(b).
He however pointed out that “the president of India has not exercised the powers in terms of the second proviso to Article 371A(1)(b)” so “consequently, the substantive part of Article 371A(1)(b) continues to be operative as a constitutional mandate.”
Dr. Jamir also mentioned that as per Article 166(3) of the constitution of India, the governor is empowered to make rules for more convenient transaction of business of the government of the state but that such rules “would not govern matters or business with respect to which the governor is by or under the constitution, required to act in his discretion.”
He said the prescription would attract provisions of Article 371A(1)(b) and as additionally under Article 371A being “notwithstanding anything in the constitution” any provision in the Rules of Business “cannot override the constitutional provisions in this regard under Article 371A(1)(b).”
He said deployment of manpower and personnel for maintenance of law and order is an integral part of the expression “action to be taken in matters relating to law and order”. Such personnel constitute the instrumentality of the state for maintenance of law and order. So , any rule framed by the governor for conduct of business under Article 166 of the constitution “would have to yield to and subjugate itself to the overriding mandatory prescriptions of Article 371A(1)(b).”
Consequently till any order is issued in terms of the second proviso to Article 371A(1)(b) by the president of India, there cannot be a prescription in Rules governor the conduct of business contrary or repugnant to the supervening mandate of Article 371A(1)(b).
Dr. Jamir also explained that orders relating to appointment/deployment of higher posts involving discharge of duty relating to law and order in the state would “require the approval of the governor of Nagaland in his individual judgment after consulting the council of ministers.”
However, he said it must be appreciated that non-obstante provision of Article 371A(1)(b) in effect “debars any abdication of this power or a complete delegation of this power and the same will continue to be governed by the individual judgment of the governor after consulting the council of ministers in terms of overriding mandate of Article 371A of the constitution of India.”