Against the backdrop of the ongoing legal battle concerning the abrogation of Article 370, the special provision that was once granted to Jammu and Kashmir, apprehensions about the destiny of Article 371(A) have intensified.
On 25 August, Union Minister for Environment, Forest & Climate Change and Labour & Employment, Bhupender Yadav, during his Nagaland visit assured that the Central government would ensure the protection of Article 371(A) of the constitution, a unique constitutional provision that pertains to the State of Nagaland.
Amidst the Centre’s commitment to safeguard Article 371(A) and prevent its fate from mirroring that of Article 370, the legal discourse has consistently circled around Article 371(A), exploring its scope, limitations, and challenges.
Earlier this year in July, Raju Ramachandran, a senior advocate at the Supreme Court of India and a former Additional Solicitor General, shared an intriguing observation during a one-day symposium. He suggested that “Article 371(A) can also be theoretically abolished.”
He elucidated that the Parliament exercises its legislative capacity while enacting everyday laws. However, when the Parliament amends the constitution, it functions in a constituent capacity, allowing for the amendment of every aspect of the constitution. Ramachandran pointed out that Article 371(A) could theoretically be abolished, citing examples like Article 371D and Telangana, where the government no longer deems a special provisional constitution necessary.
The senior advocate also stated that the Parliament can amend any part of the constitution and added that the Supreme Court has placed only one limitation, the ‘Doctrine of Basic Structure.’ He reiterated that the Parliament can amend, revoke, or abolish any part of the constitution as long as it does not violate the ‘Basic Structure.’
Thus, he posited that the revocation of Article 371(A) would be subject to specific tests. “Is Article 371(A) so ‘basic’ to the Indian constitution that its absence would render the constitution unrecognizable? This is the kind of test that could be applied,” he deliberated. He probed further, asking whether Article 371(A) is so fundamental that the constitution of India loses its identity without it, encouraging individuals to contemplate these inquiries.
Additionally, he characterized Article 371(A) as an example of ‘asymmetrical federalism’, prompting the question of whether this form of federalism is a foundational component or merely a pivotal feature within the constitution.
Ramachandran underscored the general consensus regarding Article 371(A) — it cannot be read itself as a “bare-bone” legal text but should be construed in conjunction with the 16-point agreement. Consequently, interpreting Article 371(A) will be guided by the principles of the 16-point agreement.
Expanding on the significance of the “No act of parliament…” statement within Article 371(A), he clarified that it implies that individual parliamentary acts may not be applicable. However, certain overarching constitutional principles will extend to the state of Nagaland. He clarified that Article 371(A) doesn’t protect against constitutional rights.
Thus, addressing the context of Municipal elections, he asserted, “The reservation for women is a constitutional mandate applicable to the state of Nagaland as well.”
Furthermore, deliberating on whether Article 371(A) is an enabling or protective provision, Ramachandran expounded, “For instance, if the Mines and Minerals Act doesn’t apply to Nagaland due to non-adoption by the state, it logically follows that Nagaland by itself has a power to pass a bill on land and its resources.”
He asserted that Article 371(A) wasn’t intended to create a stalemate. “My interpretation of land and minerals implies that if central law doesn’t apply, the state should be able to make a law on the subject. There cannot be a vacuum.”
The symposium, themed “Article 371(A) — Provisions in the Constitution of India: Scope, Limitations, and Challenges,” took place at the Shalom Community Centre Hall, Shalom Bible Seminary, Sechü-Zubza. It was jointly organized by Kerünyü Ki Sabang (KKS), Sechü-Zubza, and Peace Initiative of North East India (PINE), Dimapur.