Can Nagaland Breach Constitutional Mandate For 33% Women Reservation In Local Bodies By Repealing Its Municipal Act? Supreme Court Seeks Centre's Views

The Supreme Court, on Monday, asked the Centre to place on record its stand regarding whether the constitutional scheme of one-third reservation for women in municipal and town council elections can be violated by the Nagaland Government by repealing the Nagaland Municipal Act 2001. It asked the Union Government to file its stand within a period of two weeks.

“We would like ASG to assist us and place on record the stand of the UoI whether the constitutional scheme of ⅓ reservation for Municipality and town council elections in the opinion of the Centea Govt, can be violated by the process so adopted by the Nagaland State Govt.”

The Apex Court highlighted that though the State had resorted to the special provision/exemption under Article 371A of the Constitution of India it has not been able to demonstrate that there is social, religious or customary practices of the Naga community which precludes women from participating in elections.

Article 31A of the Constitution contemplates that 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.

A Bench comprising Justice SK Kaul and Justice Aravind Kumar was considering a contempt plea alleging non-compliance with its order directing the Nagaland Government and the Nagaland State Election Commission to hold local body election with 33% women’s reservation. On the last occasion, notice was issued to both the Election Commission and the State Election Commission. The State Election Commission has now filed its affidavit stating that it had no other option but to notify the cancellation of the election as the Nagaland Municipal Act and the Rules therein had been repealed. On Monday, the Bench issued formal notice to all the other relevant entities.

On 14th March, 2023, in a petition challenging the Nagaland Assembly's resolution dated September 22, 2021 exempting operation of Part IXA of the Constitution of India, which mandates 33% reservation for women, in Municipalities and Town Councils of the State, the Nagaland State Election Commission informed the Apex Court that the local body elections in the State have been notified and are to take place on 16th May, 2023. Accordingly, the Court had directed that the election schedule notified by the Commission should not be disturbed at any cost. At the request of the Advocate General for the State of Nagaland, Mr. KN Balgopal the Bench had directed that “the State Election Commission and the State are to make necessary arrangements to ensure free and fair elections…Any authority/citizen in breach thereof would be in breach of orders of this Court.”

On Monday, the Bench expressed utter disappointment when it was informed by Senior Advocate, Mr. Colin Gonsalves appearing for PUCL (contempt petitioner) that the Nagaland Municipal Act, 2001 under which the election was being held was repealed by the State Legislature to overcome the order of the Apex Court. Taking note of this ‘ingenious method’ of evading the Court’s order, the Bench recorded in the order -

“...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.”

Justice Kaul reckoned, “You cannot let a part of the country…breach the constitutional scheme. This is what we believe it prima facie amounts to.”

At the outset, the Advocate General for Nagaland, Mr. KN Balgopal, briefly narrated the conspectus of the case. He informed the Bench that previously, the Eastern Nagaland People's Organisation (ENPO) had passed a resolution against participating in the legislative assembly elections until their demand for a separate State was considered. However, ENPO had later agreed to participate in the election process. On 26th March, 2023, again a similar resolution was passed noting that the Central Government is ‘not serious’ about the concerns raised by them and thus they would not allow any elections.

The Advocate General submitted, “They constitute about 30% of the population…and more importantly out of 15 tribes in Nagaland they constitute 7 important tribes.”

Justice Kaul candidly told the Advocate General that it was an issue of women empowerment and nothing else. He believed that the impediments caused to the holding of the election is indicative of the fact that the State is not ready to empower its women. He said -

“What is happening is you (State) are saying come what may we will not let you (women) be empowered. Empowerment of women comes by education, hesitance and political participation in my belief…”

Observing that reaching a consensus with the organisations opposing the election might not be possible, the Judge orally stated, “Sometimes political consensus does not emerge then there should be a push from judiciary because we cannot let law languish.”

The Advocate General submitted that a last attempt is being made by the State to get consensus.

“Give us a last change, we will discuss. Expeditiously we will come ahead, We will have a meaningful election.”

Justice Kaul asked the Additional Solicitor General, Mr. KM Nataraj about the Centre’ stand on the issue. The ASG informed the Bench that in the matter a limited notice has been issued to the Centre in the prayer seeking deployment of Central forces in the State. He assured the Bench that he would seek instructions on the larger issue.

Justice Kaul asked, “Do we take it that you are not interested in implementing the mandate of the Constitution in Nagaland?”

Mr. Nataraj responded, “We are not saying so.”

Justice Kaul retorted, “It means so.”

In April, 2022, the State of Nagaland had informed the Apex Court that the State Government after holding a consultative meeting attended by all stakeholders had resolved to implement 33% reservation for women in local body elections.

Thereafter, on 29th July, 2022, the Apex Court had directed the State Election Commission (SEC) to complete the election process by January, 2023. However, the election process was notified. As per an affidavit filed by the State Election Commission, in January, 2023, the State Government had asked it to provide an election schedule. In response, two options for notifying the election programme have been provided by the State Election Commission. The Bench had directed the State Election Commission to notify local body elections at the earliest and place before it the official notification by 14th March, 2023. Accordingly, the Commission notified on 9th March, 2023 that the elections would be held 16th May, 2023.

On the last date of hearing, Mr. Gonsalves brought it to the Apex Court’s notice that the election, which was being held pursuant to its orders has been cancelled by a notification issued by the Election Commission on 30.03.2023.

Displeased with the cancellation of the election in the teeth of Apex Court’s order, the Court had issued contempt notices and stayed the operation of the notification cancelling the election.

The contempt plea filed through Advocate-on-Record, Mr. Satya Mitra is next listed on 1st May, 2023.

[Case Title: PUCL And Anr. v. State of Nagaland CA No. 3607/2016]

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