Nagaland Violence: Understanding the Constitutional Angle

In the previous article we have studied the issue of violence against 33% reservation for women in local bodies in Nagaland. There has been a debate surrounding non-applicability of the Constitutional provisions upon local self government in the state.  This issue arises due to two circumstances. Firstly, the traditional Naga society does not permit women to participate in decision making institutions. Secondly, the greater problem arises from the special status of Nagaland under the Article 371(A) of Constitution and with Naga Peace Accord.

Constitutional Issue

The issue is mainly due to interplay of Article 371(A) and Article 243T of the constitution of India. Article 371(A) provides for a special status for Nagaland and it says that a parliamentary law with respect to the following shall apply to the state of Nagaland unless the legislative assembly of Nagaland decides in its favour by a resolution:

• Religious or social practices of Nagas
• Naga customary law and procedure
• Administration of civil and criminal justice involving decision according to Naga customary law
• Ownership and transfer of land and its resources.

At the same time, the Article 243T via 73rd Amendment to the Constitution provided for a mandatory 33% reservation for women in the urban local self government. Due to Article 371(A), the Article 243T could not be implemented in this state due to its non-compatibility with the Naga customary law and procedure.

In this backdrop, a petition was filed by the Naga Mother’s Association in Supreme Court seeking the implementation of the 73rd amendment in the state. In 2016, Supreme Court gave mandate in favour of Naga Mother’s Association but the problem arose in enforcement of the judgement when the apex tribal authority Naga Hoho, considered extending reservations to women is against the Naga customary law. This angered feminists who vehemently criticize the Naga customary law as depriving women of life and property. Thus, this mater ultimately became a compatibility issue between fundamental rights and traditional customary rights.

Solutions

We can understand that the problem does not only lie in the Constitution but also in the social position of Naga people vis-à-vis India. But one cannot do away with gender rights because of these factors. There has to be some way out to make the two rights compatible. Some of the ways may be as follows:

Article 371(A) not a blanket provision

One of the solutions to the problem lies in correct interpretation of the Constitutional provision. The provision merely prevents certain Acts of Parliament which come in conflict with any of the aspects mentioned in the provision from being applicable to the State. However, it does not give a complete safeguard to the state to practice any custom, practice, law, usage, tradition etc. After all, the state is an integral part of the Union of India. Complete safeguard cannot be granted in the light of sanctity of Article 1 of Constitution which seeks to declare to be a Union of States. The Constitution also provides in clear terms that in order to recognize any custom, usage and tradition to have the force of law it should not conflict with the constitution of India especially the parts which deal with Fundamental Rights of the citizen of India.  So, any law promoting right to equality of opportunity shall always prevail over a customary law that goes against this.

Inclusive Development

Other than the legal implications, the Naga society can be made to integrate with the Indian society only through inclusive mechanisms. There is no doubt about the fact that while many states had these kinds of customary laws that prevented participation of women had nevertheless implemented this provision. It is only the Naga society that still sticks to its primitive customs. The cause of this is nothing but the isolation of the society from the development in other parts. The failure of the Peace Accord is also another reason why the Naga society is not prepared to accept the judgements of the Supreme Court. The feeling of exclusion is still very strong; the women’s right to participation in government is only an unfortunate victim of this struggle.

So, the Government has to adopt a mechanism where inclusive development is possible. The Naga society is torn by militarization, corruption, parochialism and armed conflict. These issues can be first addressed by the Central Government through identification and prioritization of problems concerning Nagaland, analysis of these problems, finding solutions and most importantly coordinating with the state government for implementation of the solutions.  Special schemes only for this state must be formulated.

Conclusion

From the above observations, the incompatibility persists due to legal as well as social reasons. The social reasons play a crucial role and the legal consequences mainly depend on this. So, it is very important that the social problems need to be addressed first. It is time that our Government understood the importance of integrating north-eastern states also in the process of development. So, the decades of neglect need to be done away with and some priority has to be set on the north-eastern states for both social and legal integration. The incompatibility between the two rights is only a minor issue. Several other issues will also be solved through this mechanism of development.