Law of land must be followed: SC to Nagaland on 33% women quota
After the Court order of March 14 directing reservation for women in urban local bodies, the state government cancelled the election to the 36 town councils.
The Supreme Court on Thursday told the Nagaland government that if there is any customary law in the state that prevents women from getting reservation in urban local bodies, they won’t hesitate to declare it unconstitutional.
Dealing with a petition seeking implementation of Court’s March 14 order directing the state to implement 33% reservation to women in urban municipalities under Part-IXA of the Constitution, the bench headed by justice Sanjay Kishan Kaul gave the Union government and Nagaland time till July to find a solution and report to the Court.
The bench, also comprising justice Ahsanuddin Amanullah, said, “According to you (state), is there any customary law that requires you not to elect a woman?Do not take us to the point where we may have to declare some of your customary laws as unconstitutional. We will let the law of the land to be followed.”
After the Court order of March 14 directing reservation for women in urban local bodies, the state government cancelled the election to the 36 town councils and three municipal councils on March 30 and repealed the Nagaland Municipal Act under which the elections were to be held.
The state’s decision was challenged before the top court by NGO Peoples Union for Civil Liberties (PUCL), which has been fighting the battle in Court since 2016 to get urban women their due right under the Constitution.
On their application, the Court issued notices of contempt against the chief minister, chief secretary and individual tribal leaders as the state claimed that the elections were scrapped due to lack of consensus among tribal leaders who boycotted polls.
The bench said, “When you take such a stand, it amounts to obstructing the court’s order.” The state’s advocate general and senior advocate KN Balagopal informed the Court that the implementation of 33% in urban local bodies would create an anomalous situation in the state.
He explained that Nagaland faced a “peculiar situation” as municipalities under the Constitution Part IXA apply to the state while the operation of Panchayats under Part IX of the Constitution stand specifically excluded by Article 243M, which give special rights to tribal areas.
An affidavit filed in this regard by the chief secretary J Alam said: “This has created an anomolous situation in the state whereby women living in the urban areas can claim reservation whereas their counterparts in rural areas do not have such a benefit.”
The affidavit further stated: “The government will have to consider such disparity, also taking into consideration the fact that Article 371A (special provisions for Nagaland) of the Constitution applies to the entire State of Nagaland.”
Article 371A states that any Central Act 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.
When the Court wished to know the stand of the Union government on this issue, additional solicitor general (ASG) KM Nataraj said that the defence of Article 371A is not available to the state government for not implementing the Court order. He requested for time as he indicated that the Centre is considering the matter with the state government.
The Court warned the state, “We have given you a long rope, but that rope also has its limitation. Do not make it so long that it reaches the point that you hang yourself.” The bench also asked tribal chieftains to be mindful of the court’s direction as some of the tribal groups filed affidavits stating that it was not possible for them to implement the order on 33% quota for women.
The bench told senior advocate Ranjit Kumar representing some of these groups, “There must be some sort of restraint while filing the affidavit. You have to be careful of the language being used.”
The Nagaland assembly in September 2012 resolved not to implement the 33% reservation for women under Part 1X-A of the Constitution in the state. This resolution was challenged by PUCL in the Supreme Court in 2016. Though the assembly withdrew the resolution in November 2016, the letter of the law was not implemented due to opposition by tribal leaders who even indulged in large scale violence to block the cause .
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