'You Take Extreme Stands Against Other State Govts, But Say Nothing When Your Own State Govt Violates Constitution’: Supreme Court To Centre On Nagaland Women Reservation

The Supreme Court, on Tuesday, called the Union Government out for not taking action in the State of Nagaland to implement the constitutional scheme of one-third reservation for women in municipal and town council elections. 

The Court said that while the Centre takes 'extreme stands' against other State Governments, it does nothing against its own State governments are violating the Constitution..

A Bench comprising Justice SK Kaul and Justice Sudhanshu Dhulia noted that the Central Govt cannot wash its hand of the issue especially when the political dispensation in the State is in line with that at Centre. Justice Kaul said, “You have to be roped in....You are one political dispensation so it would be easier for you to actively participate.”

Justice Kaul came down heavily on the Union Government for showing lack of willingness in implementing a constitutional scheme. He told ASG, KM Nataraj, “Don’t make me say that the Central Government is not willing to implement the Constitution, because I’ll say it.”

In April, 2023, the Court had asked the Centre to place on record whether the constitutional scheme of reservation for women in local bodies as envisaged in Article 243D applies to the State of Nagaland, or if some exemption has been granted to it. The Union Government is yet to file an affidavit. But, Mr. Nataraj orally submitted that he had indicated on the previous occasion that the constitutional scheme of reservation extends to the State of Nagaland. He clarified that the exemption granted under Article 371A that contemplates legislation enacted by the Parliament would not apply to the State of Nagaland in matters pertaining to their religious or social practices; their customary law and procedure; administration of civil and criminal justice involving their customary law; and ownership and transfer of land and its resources, does not deny right of equality to women so far as participatory process is concerned.

Justice Kaul reckoned, “Why is it (Article 243A) not being implemented? What are you doing?...Politically also you are on the same page. It is your Govt. in the State…”

The Judge added, “I refuse to let your hands off. You take extreme stands against other State Governments who are not amenable to you, but your own State Government is violating Constitutional provision and you do not want to say something.”

Justice Kaul further enquired, “Now as the Central Govt what role will you play?”

The ASG submitted that the State Government has now initiated a legislative exercise. He sought some reasonable time so that the State of Nagaland can resolve the issue once and for all. In this regard he said, “Considering the situation prevailing in the North East, some reasonable time be given so that they can put an end to this situation.”

The Advocate General (AG) for the State of Nagaland, KN Balgopal sought some time from the Apex Court to impress upon the relevant political dispensation that the only way forward is to implement the mandate of having one-third reservation in the municipalities. Noting that such a request has been made by the AG for the ‘nth time’, the Bench granted him one last of the last opportunity.

During the course of the hearing, in order to emphasise on the significance of reservation Justice Kaul told the AG, “Reservation ensures that a minimal level of representation is there. Reservation is a concept of affirmative action. Women reservation is based on that. How do you get out of the constitutional provision? I do not understand this.”

The AG submitted that when the present government of Nagaland came to power the first meeting held was on the issue of reservation. It was decided that the local body elections would be held with women’s reservation. He pointed out that the calls for boycotting elections by the majority of the tribal bodies was an impediment in the Government’s intention to hold elections. He submitted that previously, the Eastern Nagaland People's Organisation had passed a resolution against participating in the legislative assembly elections until their demand for a separate State was considered. Later they agreed to participate in the election. However in March, 2023, the boycott was reintroduced.

Justice Kaul was of the opinion that these organisations may have a right to not participate in elections, but it is the duty of the State Government to implement the mandate of the Constitution. He asked the AG, “Why resistance to participation of women when in all walks of life women are equally involved?. Why do you hesitate in giving even one-third representation?”

The AG responded that he had personally met some of the women organisations in Nagaland and one of the major organisations has said that they do not want reservation.

Expressing his view in this regard, Justice Kaul said, “When a social progression takes place it is the law often that comes first and that often becomes an impetus for social change. If anything was left to be done voluntarily many things would not have happened after 1950. Do you think men under Hindu law would have agreed to have only one wife? The rights of women in estate and property would have arisen?..”

He added -

“There is always resistance to change of status quo. But, someone has to take initiative to change the status quo for the better.”

While giving State the final opportunity, the bench noted in the order :

"Central Govt cannot wash its hand of the issue. Its task is simplified by the fact that the political dispensation in State is in line with the political dispensation at Centre. Giving (State) last of the last opportunity..."

[Case Title: People Union For Civil Liberties (PUCL) v. The State of Nagaland| Civil Appeal No.3607/2016]

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