Mokokchung, 6 May (MTNews): Justifying its March 29 decision to repeal the Nagaland Municipal Act under which women reservation was promised, the Nagaland state government in an affidavit filed last week said 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 stand specifically excluded by Article 243M.
“This has created an anomalous 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 Nagaland government said in the affidavit.
The affidavit was submitted in the Supreme Court by the Chief Secretary of the Government of Nagaland, Hindustan Times reported.
He further explained, “This creates a peculiar situation whereby two women living within a distance of as little as 2 km, or even less, from each other are being put in an inequitable position.”
The geographical makeup of the state is such that there is often no clear demarcation between village areas and municipal areas and villages often surround and merge with the municipal areas, informed the state.
In view of such peculiar and unique circumstances prevailing in the state, the affidavit said, “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.
The state’s decision to repeal the Nagaland Municipal Act on March 29 had invited the wrath of the top court which issued notices to the state Chief Minister and Chief Secretary seeking explanation and also sought a response from the Centre on how a constitutional mandate to implement 33% reservation for women in municipalities could be rendered futile in this manner by a state.
The state said that while Article 371A seeks to protect the unique history, identity and socio-economic features of Nagaland’s tribes, this exercise is complex, sensitive and emotive as the different tribes, comprising 15 recognized tribes, do not have uniform customs, laws and practices, and many have no written record of the same.
The state told the Court that while it endeavored to hold polls and rollout reservation for women in urban local bodies, the boycott by tribal bodies forced a rethink and led the state to repeal the Act.
“It continues to be the intent of the Government to conduct elections expeditiously and to conclude this issue fruitfully and amicably. The Government endeavors to do this by considering all issues by bringing on board all the stakeholders to find a consensus.”
It was in September 2012 when the Nagaland assembly passed a resolution not to give effect to the 33% women reservation in urban local bodies.
This resolution was challenged by the NGO Peoples Union for Civil Liberties (PUCL) in the Supreme Court in 2016.
Though the assembly withdrew the resolution in November 2016, the law was not implemented due to opposition by state tribal leaders. The Court had been pushing the state to conduct the ULB elections with women reservation.
On March 14, the Court passed an order for holding elections and directed that any authority or person acting contrary to this order be seen as acting in breach of the Court’s order. It was citing this order that PUCL moved an application before the Court seeking contempt of Court action to be initiated against the state government, its officials and the state election commission. It is in these proceedings that the recent affidavit of the state was filed.
Centre seeks time from SC to clarify stand; matter to be next heard on 18 May
Meanwhile, PTI reported that the Centre has told the Supreme Court it was in the process of holding discussions on the validity of Nagaland government’s decision to repeal the Municipal Act to circumvent one-third reservation to women in ULB polls, and asked the court for a fortnight’s grant before it could make its stand clear on the matter.
The apex court had earlier asked the Centre to give its stand on whether the constitutional scheme of one-third reservation for women in municipalities and town councils can be violated by the state of Nagaland, where the assembly had passed a resolution to repeal the Municipal Act.
Additional Solicitor General (ASG) K M Nataraj, appearing for the Centre, sought two weeks’ time from a bench of Justices SK Kaul and Aravind Kumar to comply with the apex court’s April 17 order.
“ASG submits that there are inter-ministerial discussions in pursuance to our order dated April 17, 2023 and seeks two weeks’ more time to comply with our order. List on May 18,” the bench said in its order passed on May 1.
The top court had on 5 April stayed the 30 March notification of the State Election Commission (SEC) cancelling till further orders the election to the ULBs in Nagaland which were scheduled for 16 May.
On 30 March, the SEC had issued a notification cancelling the election program notified earlier “till further orders” in view of the repeal of the Act.
The apex court is hearing a petition seeking 33 per cent reservation for women in the elections to the ULBs in the state.
In its 17 April order, the top court had noted that the “ingenious method” adopted to evade the undertaking given to the court earlier about holding the election has been the repeal of the Nagaland Municipal Act, 2001.
“There is hardly any hesitation on our part to note that what is sought to be done is in breach of the undertaking given to this court,” the bench had said.
“We would like him (ASG representing the Centre) to assist us and place the stand of the Union of India whether the constitutional scheme of one-third reservation for municipalities and town councils, in the opinion of the Central Government can be violated by the process so adopted by the Nagaland Government,” it had said.
The bench had on April 17 granted two weeks’ time to the ASG to place the Centre’s stand on record.
The apex court had in its March 14 order noted the SEC counsel’s submission that the elections will be held on May 16.
The petitioners have moved an application before the top court through advocate Satya Mitra against the cancellation of the elections and urged it to take contempt action for “disobeying” the March 14 order.
Besides seeking quashing of the March 30 notification issued by the SEC cancelling the election program, the application has also sought setting aside of the Nagaland Municipal (Repeal) Act, 2023.
The SEC had earlier announced elections to the 39 ULBs in the state. Of the 39 ULBs, Kohima, Dimapur and Mokokchung have municipal councils, while the rest are town councils.
Several Naga tribal bodies and civil society organisations had opposed the ULB election under the Nagaland Municipal Act 2001, asserting it infringes the special rights for Nagaland guaranteed by Article 371-A of the Constitution.
The 2001 Act, which was amended later, made 33 per cent reservation of seats for women mandatory for holding the ULB elections, as directed by the Supreme Court.
ULB elections in the state have been long overdue with the last polls held in 2004.