Sunday, June 4, 2023

Imkong L Imchen on Article 371(A)

“Subjective critic on Article 371 (A) more particularly Clause (IV) Ownership and Transfer of Land and its Resources I am constrained to forward my considered individual views and understanding on the subject in the public domain on observation of the fact that Nagas of today vigorously talk and think about safeguarding Article 371(A), which was inserted in Part XXI of the Constitution of India by Constitution (13th Amendment Act 1962). Yet, as of today in the light of my understanding as an active participant in the political affairs of the State , I am without any measure of hesitation and in unequivocal terms say that the very Constitutional Provision of Article 371(A) more particularly Clause IV has become ‘ispo-facto otiose’ and therefore, sadly redundant.
Prelude of history:
We are all aware that the history of the Naga struggle for political emancipation, we find that to do or die for a sovereign independent Naga homeland from the chains of the alien rule and control was seriously started in the early 1950s when the Nagas took voluntary Plebiscite on May 16th 1951, under the spearhead of Naga National Council (NNC). During those decisive and turbulent times, the understanding of the Nagas was:-
“Nagas are not Indians and Nagaland is not Indian Territory. The Nagas are not demanding independence from India and the Nagas are not trying to secede from India. The case of Nagaland is a case of aggression. It is war…. (A.Z Phizo).”
“A state of emergency equivalent to martial law in practice existed in Nagaland since early 1950s and all Naga areas were turned into warzones. Horrible events were taken place but very few were known to the outside world.” Ref: Nagas in the crossroad: (Tajen Ao). “I can well remember how dark were those days when no foreigners were allowed to witness the situation in the early part of 1950s while the whole world was busy in their own affairs, Nagaland was converted into a prison cell. “ Ref Nagaland Church and Politics: (Rev. V.K. Nuh,)
History vividly reveals that for sovereign independent Naga homeland, our forefathers/fathers have willingly given their lives forbear unabated cycle of violence, bloodshed and tears. It is understood that in the given tormenting situation and times Naga People’s Convention (NPC) was formed in 1957 with an idea to explore means of possibility for restoration of peace and harmony in the beleaguered Naga lands. However, the initiatives so made by the NPC was out-rightly rejected by the then NNC/Federal Govt, and therefore till date the draft memorandum of 16 Point Agreement and subsequent Article 371(A) of the Constitution is never accepted as Final Political Solution. (This aspersion is, till today, the most formidable obstacle and hindrance in the pursuit of honorable and acceptable solution of Naga political issue). However, the delegates of NPC went ahead with their preconceived political agenda and signed the 16 Point Agreement with the Government of India without the popular mandate of the Naga people.
However, agreement being signed before the Honorable Prime Minister of India without the knowledge and affirmation of the Naga people, Article 371(A) was inserted in the Constitution of India by virtue of the 16 Point Agreement of NPC. It is estimated that Article 371A was by and large propagated by the signatories as the final political emancipation of the Nagas but nonetheless it is observed that there are self-contradicting flaws and undefined paradoxes in the working and implementation of Article 371A. Bare reading of Article 371A squarely reveals that no definition or meaning is given with regard to ownership and transfer of land and its resources which is given in clause IV. This very inherent flaw creates difficulties and confusion in the realm of interpretation. Further observation is that there is no specific legislative power accorded to the Nagaland Legislative Assembly to legislate with respect to the special provision of Article 371(A) Clause IV. This unexplained ambiguity and flaw gave rise to never ending confusion. By all indications, it is observed that Article 371(A) does not per-se (by itself) provide blanket protection and safeguards to its special provisions. Article 371(A) is rather a protective provision but not an enabling provision of law in the Constitution. It is a saddening inherent flaw that Nagaland Legislative Assembly was not accorded the power to make its own law in the enumerated clauses of Article 371(A). If the Nagaland Legislative Assembly could not legislate on the special clauses of Article 371(A) then Nagaland State which was created through a written bilateral political agreement could only Legislate in the enumerated list III in the Seventh Schedule known as State List in consonance with the provision of Article 245 read with Article(s) 246, 247, 248 of the Constitution of India this present arrangement has already made Nagaland State in the same footing with other States in the Indian union who were otherwise created under State Reorganization Commission in accordance with Article 3 of the Constitution of India. The process for creation of present Nagaland State was preceded by the merger of Naga Hills District in Assam and Tuensang Frontier Division, carved out of NEFA in 1957 to form Naga Hills Tuensang Area (NHTA). In 1960,the then Prime Minister Jawaharlal Nehru agreed to the proposal for the 16 Point Agreement that formed the basis for creation of Nagaland State which was later signed with the Naga People’s Convention on July 26,1960. (It was reported that the idea of convening the Naga People’s Convention (NPC) in 1956 was given by the Intelligence Bureau (IB) of Government of India and was patronized by them so as to make the Convention a reality, it is also known that the first draft of the 16 Point Agreement was drafted by the Intelligence Bureau (IB) themselves.
It is a known record that after obtaining the opinion of then legal luminaries like H.M. Seervai, F.S. Nariman, R.C. Sarkar and M. Hidayatullah in the 1980’s all of whom concurred that “Land and its Resources” as used in Article 371(A) Clause IV includes mines and minerals accordingly the Nagaland Legislative Assembly (NLA) passed a resolution on July 26, 2010 to the effect that laws made by the Parliament on Petroleum and Natural Gas would be inapplicable in the State of Nagaland with retrospective effect, and subsequently invited “Expressions of Interest”(EOI) from companies to explore and exploit the 11 oil and gas fields it identified across 11 districts in the State. However, this legislative initiative by the Government of Nagaland was extinguished by the Government of India, Ministry of Home Affairs by its Office Memorandum dated 23-05-2012 wherein it was stated that, “the Union Ministry is of the considered view that Article 371A (a) does not confer legislative power to the legislative Assembly of Nagaland on regulation and development of mineral oil The power to make law in respect of subjects covered under List-I of the Seventh Schedule of the Constitution including entry 53 of List-I, rests with the Parliament Therefore, the resolution passed by the Nagaland Assembly in July, 2010 is unconstitutional and invalid.”. It is very saddening that the above unilateral office memorandum in the form of order that the Nagaland Legislative assembly has bypassed entry 53 of List-I of the Seventh Schedule and the Mines and Minerals (Regulation and Development) Act 1957 is to my understanding of entirety of the matter is palpably erroneous, incurably not tenable and manifestly arbitrary. It is nowhere seen on the records that the Mines and Minerals (Regulation and Development) Act 1957, has been approved by the Nagaland Legislative Assembly as an applicable statutory law in the state from the date of statehood till date. It is therefore in the light of the above legislative process initiated by the State of Nagaland and the concurrent nullifying executive orders so pronounced by the Union of India the so called sacrosanct provisions of Article 371 (A) more particularly clause 4 which envisaged ownership and transfer of land and its resources has from the threshold to hitherto has failed and has tormented down to non-est bottomless pit.”
Imkong L Imchen
Advisor Information & Public Relations and Soil & Water Conservation


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