Mokokchung, 5 May (MTNews): Addressing a press conference on Friday in Kohima, Advisor Imkong Imchen said that there are “self-contradicting flaws and undefined paradoxes in the working and implementation of Article 371A.”
Imchen said that “bare reading of Article 371A reveals no definition or meaning with regard to ‘ownership and transfer of land and its resources’ which is given in clause IV” and that it creates “difficulties and confusion in the realm of interpretation.”
Article 371A (IV) states that “…ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.”
According to Imchen, “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” and, therefore, 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 provide blanket protection and safeguards to its special provisions,” he reiterated.
He expressed that it was 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) and, therefore, Article 371(A) is rather a ‘protective provision’ but not an ‘enabling provision of law’ in the Constitution.
According to Imchen, because the Nagaland Legislative Assembly cannot legislate on the special clauses of Article 371 (A) but legislate only on the enumerated list III in the Seventh Schedule in consonance with the provision of Article 245 read with Article(s) 246, 247, 248 of the Constitution of India, the present arrangement has already made Nagaland State in the “same footing with other States in the Indian union.”
He then recalled how in the 1980’s legal luminaries like HM Seervai, FS Nariman, RC Sarkar and M Hidayatullah concurred that “Land and its Resources” as used in Article 371(A) Clause IV includes mines and minerals.
Therefore, on 26 July 2010, the Nagaland Legislative Assembly passed a resolution 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” from companies to explore and exploit the 11 oil and gas fields it identified across 11 districts in the State.
However, he pointed out that this legislative initiative by the Government of Nagaland was declared “unconstitutional and invalid” by the Government of India, Ministry of Home Affairs by its Office Memorandum dated 23-05-2012 which stated:
“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”.
Imchen called the above ‘unilateral’ office memorandum ‘saddening’ because the Nagaland Legislative assembly has never approved the Mines and Minerals (Regulation and Development) Act 1957 as an applicable statutory law till date and, therefore, the Central government stating that the NLA has “bypassed entry 53 of List-I of the Seventh Schedule and the Mines and Minerals (Regulation and Development) Act 1957” is “palpably erroneous, incurably not tenable and manifestly arbitrary.”
In this regard, he viewed that Article 371 (A) more particularly clause 4 which envisages ownership and transfer of land and its resources has from the beginning till now ‘failed’ and has “tormented down to a non-est bottomless pit.”
