Prof. Upendra Baxi, while talking of “Constitutionalism and Identity”, made an incisive observation on the nature of the Indian Constitution that pretty much sums up the dilemma that consumes the State of Nagaland today. “We live in the era of Finished Products. We do not like fragments. What, then, is the relationship between a ‘Finished Product’ and a ‘Fragment?’”, he began his comments by setting the tone and tenor as to how one must study the document that is called the Constitution of India. “A fragment is incomplete” and “a Finished Product is a little more than complete”, Prof. Baxi points out and goes on to assert that “we have lost the art of thinking in fragments.” He ties this up by saying that the “Constitution of India is an assemblage of various fragments…”, “series of fragments of which we must make sense.” (emphasis supplied)
On the strength of this hypothesis, we have two fragments in the Indian Constitution viz. Article 371A and the provisions pertaining to the 73rd and 74th Constitutional (Amendment) Acts; of which we must make sense by what Prof. Baxi calls, “interpretation upon interpretation”. Article 371 A of the Indian Constitution was inserted as a resulted of Thirteenth Constitutional (Amendment) Act, 1962 which was passed following the agreement between the Government of India and the leader of the Naga Peoples’ Convention for the establishment of the separate State of Nagaland. It contains the special provisions with respect to the governance in Nagaland. It says: “(1) Notwithstanding anything in this Constitution,
(a) no Act of Parliament in respect of
(i) religious or social practices of the Nagas,
(ii) Naga customary law and procedure,
(iii) administration of civil and criminal justice involving decisions according to Naga customary law,
(iv) 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;. . .”
This provision of the Indian Constitution is an overriding one in the sense that it operates notwithstanding anything in the Constitution. The 73rd and 74th Constitutional (Amendment) Acts that aim at democratic decentralisation by way of constitutionally-sanctioned bodies of local self-government (73rd Amendment Act deals with the Rural Local Bodies and 74th Amendment Act deals with the Urban Local Bodies), also have a provision for 33% reservation for women. The ‘reservation clause’ became the bone of contention between the tribal bodies in Nagaland and the Democratic Alliance of Nagaland (DAN) Government headed by T R Zeliang when the latter announced that 33% seats will be reserved for women in the elections to Urban Local Bodies in Nagaland [as per the provisions of 74th Constitutional Amendment ). This led to widespread protests as the tribal bodies demanded the CMs resignation and that the government declare the electoral process with 33% reservation for women as null and void. The Nagaland government eventually had to give in to the pressure; it declared the process as null and void and the CM had to step down. The tribal bodies take recourse to Article 371A of the Constitution to assert their demands. Legally speaking, as long as Nagas can establish that a particular practice that they hold so dear is a religious or social practice of the Nagas or Naga customary law or procedure, no legislative enactment can prevail over it. But then, we come back to the question hat about the ‘reservation clause?’ The Constitutional questions involve such intricacies that one must take recourse to Prof. Baxi for better perspective.
“Khushi Ke Saath Dunia Mein Hazaaron Ghum Bhi Hote Hain, Jahaan Bajti Hai Shehnaai (trumpet) Wahan Maatam (civic lamentation) Bhi Hote Hain,” Prof. Baxi quotes and goes on to assert that how “we move in a circle of annihilation and creation.” He points out that how the Constitution of India contains elements of annihilation and people-oriented development. “What, in the Constitution, is the trumpet of power and authority and where in the Constitution are elements of civic lamentation and grief?”-unless one asks these questions while studying the Constitution, Prof. Baxi argues, they are at the wrong place!
