Post Mortem

Flaws and flames on Article 371A

By Nagaland Post | Publish Date: 2/4/2019 12:30:19 PM IST

 (From previous issue)

It is observed that if the quoted OM is taken as the settled law presently holding the field Article 371A resultantly does not have any legal and constitutional force, but rather becoming stoically redundant. If the power of the Nagaland Legislative Assembly to legislate on the provision of Article 371A is thwarted by the Govt. of India, then the Nagaland Legislative Assembly could legally legislate only on those matters that are enumerated in the List III in the Seventh Schedule known as state List in consonance with the provisions of Article 245 read with Article 246, 247 and 248 of the Constitution. This arrangement will make Nagaland State which was formed through a written political agreement in the same footing with other states in the Indian Union who were otherwise created under States Reorganisation Commission in accordance with Article 3 of the Constitution of India.
In a relevant case, “Temjenkaba Vs Temjenwati reported in (AIR 1992 Gau 8,1991(2) Gau LR 200)the appellants contended that under Article 371A of the Constitution of India no Act of parliament could extent to the State of Nagaland if it relate to the administration of civil and criminal justice involving Naga customary law unless the Legislative Assembly of Nagaland by a resolution so decides, and that since the Legislative Assembly of Nagaland had not adopted any resolution to extent the Limitation Act of 1963 to Nagaland State, the said Act did not extent to the State of Nagaland. However, on consideration of entirety of the matter the Hon’ble Gauhati High Court has ruled that the Limitation Act 1963 does not involve decision according to Naga customary procedure hence, it can apply in Nagaland, and that the provisions of Article 371A of the Constitution were not attracted”. By all indications it is observed that the Article 371A does not by itself per-se provides blanket protection and safeguards to its special provisions, rather it is observed that the bilateral 16 Point Agreement of 1960 and Article 371A is slowly fading and fairly eroding its existence by arbitrary dictates of Govt. of India. It is a saddening reality that the Govt. of India is overriding and destroying the provision of Article 371A on all occasions in its own motion unilaterally and is followed consciously or unconsciously by the Naga Legislatures over the years. It is high time that Nagaland Legislatures should collectively take up this eroding Article 371A and its related matters with the Govt. of India on a war footing, which is an inevitable necessity if not a urgent bounden requirement. The Nagaland State cannot for indefinite period depend on the dictates and dispensation of Govt. of India. Nagas are no longer living in isolated self- governing independent villages anymore. Nagaland and its people had grown tremendously in all spheres over the years. Today the Naga people can stand at par with any civilized citizens of the world.
(Views and opinions expressed are all writers own individual bearings and must not be equated with the stand or understanding of any political party in Nagaland in any manner whatsoever.)
L. Moayanger Imchen, Advocate

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