Supreme Court chides Centre on lack of will to act against Nagaland govt
The Supreme Court on Tuesday questioned the Centre’s double standards in not holding the Nagaland government accountable for its failure.
The Supreme Court on Tuesday questioned the Centre’s double standards in not holding the Nagaland government accountable for its failure to implement the constitutional mandate on 33% reservation for women in municipal bodies, saying that in the case of other states the Centre does not hesitate in taking action.
Giving the northeastern state “one last opportunity” to come up with a law in this regard by September 26, the top court was unsparing towards the Centre. “Don’t make us say that the Centre is not willing to implement the Constitution. We refuse to let you wash your hands off in such a serious matter,” a bench of justices Sanjay Kishan Kaul and Sudhanshu Dhulia said. “This is completely unacceptable.”
Additional solicitor general KM Nataraj, appearing for the Centre, said so far as 33% reservation for women in urban local bodies is concerned, it is mandated by Part IXA of the Constitution and should be implemented. However, the state has to implement it, he added.
“Why is it not happening then? There should be no difficulty as the political dispensation in the state is aligned with the political dispensation at Centre. At the slightest instance of abrogation of Constitution, you take action against state governments,” the bench remarked. “Here, your own state government is violating the Constitution and you are not doing anything.”
The court was hearing an application filed by non-profit Peoples Union for Civil Liberties seeking contempt action against the Nagaland chief minister, chief secretary and tribal heads for violating a March 14 order directing implementation of women’s reservation in the urban local body polls due in May.
Acting contrary to the order, the state government on March 30 repealed the Nagaland Municipal Act, under which elections to the 36 town councils and three municipal councils was to take place. This was attributed to the lack of consensus among tribal leaders, who gave a call to boycott the polls.
The state government was represented by its advocate general, senior advocate KN Balagopal, who told the court: “Constitutional scheme will not be violated.” He sought one last opportunity as the state was in the process of bringing a new law “as expeditiously” as possible, taking care of the concerns raised by the tribal groups.
“Will it take a century to do that? So many years have elapsed. We have given you umpteen opportunities to introduce a change and break the status quo,” the court said. “When social progress takes place, law has to go forward.”
“Advocate general for the nth time seeks to assure the court that the constitutional scheme will be implemented as he needs time to speak to the political dispensation to implement the constitutional provision,” the bench said. “In view of the impassioned plea of the advocate general to give last of the last opportunity, we are willing to accept the request.”
Giving two clear months to the state, the bench posted the matter for September 26 and told the state: “If you do not find a solution, we will set up a hearing the very next week, whatever be the consequences.”
Witnessing the presence of the tribal chieftains and women groups during the hearing, the bench said, “We will only say that the customary laws of Nagaland and the special status enjoyed by the state under Article 371A will not be touched in any manner.”
Article 371A states that any central law passed by Parliament in respect of religious or social practices of the Nagas, Naga customary law and procedure, administration of civil and criminal justice involving decisions according to Naga customary law, and ownership and transfer of land and its resources, cannot apply to the state unless the Nagaland assembly adopts it by passing a resolution.
The court was “pained” to note the resistance of the state to realize the aspirations of women seeking one-third reservation in urban municipal bodies. “When the Constitution provides for reservation, how do we, when somebody approaches us, not implement it?” the bench asked. “This is a state where in matters of education, social and economic participation, involvement of women is best seen. We cannot countenance why then a decision on one-third representation to them in municipal governance should not be taken.”
Balagopal pointed out that the implementation of Part IXA leads to a dichotomy as while women in urban local bodies get reservation, those in villages, governed by Panchayati Raj institutions, will not have this benefit since the operation of panchayats under Part IX of the Constitution is specifically excluded for Nagaland by Article 243M of the Constitution. Some women organisations have told the state they do not need reservation, he added.
“You knew the Act as it was. Nothing prevented you from making amendments,” The bench told the state. “Can this be the basis to say that it should not apply to cities because it does not apply to villages?”
Even with regard to the boycott call by tribal groups, the bench clarified: “There is always a resistance to change status quo. Whoever wants to abstain, they will not go to vote or can even press NOTA (none of the above) option. They have a right to abstain but the state has a duty to hold elections.”
The boycott call given by tribal groups in the state was complete and nobody ventured out, Balagopal pointed out. In such a scenario, holding elections has no meaning. In September 2012, the Nagaland assembly had passed a resolution not to give effect to the 33% women quota under Part 1XA in the state. Though the assembly withdrew the resolution in November 2016, the letter of the law was not implemented due to opposition by state tribal leaders, who blocked the cause of women’s reservation, he added.
Nataraj told the bench that the only way out was to give some reasonable time for the state to come out with the law. “Due to the peculiar situation in the northeast, give them some reasonable time to bring things to a quietus,” he said. The court was conscious of the ongoing tension in Manipur and commented: “You (Nagaland) are better than some neighbouring states, which have a problem.”
The court reminded the state that it had waited for 14 years and now the period of remission is over. The court was referring to the fact that a person undergoing life sentence becomes entitled for compassionate release at the end of 14 years.
The 33% women’s reservation in urban local bodies was introduced in the Constitution in 1992, but the municipal laws in Nagaland did not provide for it. It was added in 2005 and since then, the tribal groups have refused it to be implemented. In October 2011, the Gauhati high court directed the state to hold urban local body elections, demarcating seats for women. This led to the September 2012 resolution by the state assembly to not give effect to the reservation. This resolution was challenged in the Supreme Court initially by women activists followed by PUCL in 2016.