A curious case

NAGALAND AND `SHARED SOVEREIGNTY’

The Constitution of India has embraced the ideas of co-operative and asymmetric federalism that sees an interplay between the Centre and the states in the world’s largest democracy. This supreme charter is the sole instrument that governs the destiny of a diverse demography spread over a vast geography.

The concept of asymmetric federalism is not alien to constitutional democracies across the globe. Louise Tillin’s essay titled ‘Asymmetric Federalism’ in The Oxford Handbook of The Indian Constitution mentions that “the granting of differential rights to certain federal sub-units, and the recognition thereby imparted for distinct, territorially concentrated ‘ethnic’ or ‘national groups’, is a common feature of federalism in pluri-ethnic or pluri-national settings”.

The founding fathers of the Indian Republic specifically accommodated this feature in Part XXI of the Constitution, which provides for ‘Temporary, Transitional and Special Provisions’.

The most prominent provision was Article 370, which was conferred upon the erstwhile state of Jammu and Kashmir. It was a special status that empowered the state to adopt its own separate constitution, whose powers now stands abrogated following The Constitution (Application to Jammu & Kashmir) Order, 2019 issued by the President of India and the passage of the Jammu & Kashmir Reorganisation Act, 2019 by Parliament.

Over the years, Parliament, by way of constitutional amendments, accorded such special status to many states, including those in North-East India, which grant a certain degree of autonomy to these regions.

Article 371A, inserted by way of the Constitutional (Thirteenth Amendment) Act, 1962 is a special provision that governs the state of Nagaland.

The provision notes that no law passed by Parliament in respect the religious or social practices of the Nagas, Naga customary law and procedure, administration of civil and criminal justice in accordance with Naga customary law and ownership and transfer of land and its resources, shall be applicable to the state of Nagaland, unless the Legislative Assembly of Nagaland approves of the same by way of a resolution.

The Governor of Nagaland is vested with certain discretionary powers, which he/she may invoke, based on the law and order situation in the state.

The Naga conundrum

It is often debated as to whether the Nagas formally acceded to the Union of India. A number of Naga organisations have often claimed that the Nagas constitute a separate sovereign, independent group from that of India so much so that August 14 is celebrated as ‘Naga Independence Day’.

The region in and around Nagaland has witnessed deadly insurgencies and secessionist movements for several decades. The local population has often been harassed and subjected to extortion, under the veil of ‘taxation’ that is imposed by several organisations that claim to be representing the Naga movement.

The imposition of laws such as the Armed Forces Special Powers Act and the Unlawful Activities (Prevention) Act has also been a common feature in the region. Peace talks between the Government of India and the militant outfit NSCN (I-M), over the years, have yielded gradual progress, especially with the recent historic Framework Agreement (FA) that was signed in August, 2015.

However, this FA has garnered controversy lately with the NSCN (I-M) alleging R N Ravi, the interlocutor appointed by the Government of India who also serves as the Governor of Nagaland, of altering the terms of the FA.

Shared sovereignty

The NSCM (I-M) has constantly claimed the idea of “shared sovereignty” and a separate Constitution that serves the interests and welfare of the Naga people. It has further been reiterated that regions in neighbouring states that have a sizeable Naga population be carved out and amalgamated to form a ‘Greater Nagaland’.

But can a state, which is a part of the Union of India, adopt a separate Constitution? It may be argued in the affirmative, citing the separate Constitution that had existed in the erstwhile state of Jammu & Kashmir.

However, it is relevant to note the nomenclature in Article 370 begins with the word ‘temporary’ and the State Constitution ceased to operate following the abrogation of powers under Article 370.

On the other hand, Article 371A begins with the word ‘special’ and this word is used for all the other states that have been accorded with such status –Article 371 and Articles 371A to Article 371J. The word ‘special’ denotes the powers of autonomy that have been accorded to these states by the Constitution in keeping up with the spirit of asymmetric federalism.

Moreover, the Supreme Court of India in S R Bommai v Union of India has held that federalism is a part of the basic structure doctrine and even went further to point out that the state, being a creation of the Constitution, does not have the right to secede or claim sovereignty.

Although India is often described as an indestructible union of destructible states, with Parliament being empowered to alter the boundaries of states, any such attempt could potentially jeopardise the peace and stability in this volatile region.

The state of Nagaland already enjoys a certain degree of autonomy under the provisions of Article 371A so as to ensure that the local customary practices and traditions of the Naga people are preserved and not interfered with the force of legislation passed by Parliament.

However, the demand for a separate constitution for an ethno-geographic region within the territory of India is not consistent with the spirit of Indian constitutionalism.

The Government of India must firmly tread with caution bearing in mind the best interests of the people of Nagaland who have for decades being subject to the horrors of insurgency and the sovereignty and territorial integrity of India, to arrive at a peace accord with the NSCN(I-M) and put an end to the several decades of conflict.

(The writer is Senior Advocate, Supreme Court; she acknowledges inputs by Partha Mansukhani in writing this article)