THE Narendra Modi-led National Democratic Alliance (NDA) government’s plan for a speedy conclusion of peace talks with the National Socialist Council of Nagalim (Isak-Muivah) and the Naga National Political Groups (NNPG) hit a roadblock over the core issues of a separate flag and constitution for Nagas.
The NSCN(I-M) ruled out the possibility of signing any final agreement with the Centre if its long-standing demand for a separate flag and constitution did not form part of it.
The rebel groups became apprehensive when the Modi government claimed that “one nation, one constitution” had become a reality with the abrogation of Article 370 (whose provisions gave special status to Jammu and Kashmir with a State flag and a separate constitution) and 35A (which empowered the Jammu and Kashmir government to identify and provide special rights to “permanent residents”). The NSCN(I-M)’s insistence on a separate flag and constitution and the rebel group’s articulation of the concept of “shared sovereignty” present the possibility of the peace talks reaching a dead end. In a letter to Modi, NSCN chairman Qhehezu Tuccu and general secretary Thuingaleng Muivah conveyed their position: “Without these two core issues solved, any solution would be far from honourable because Nagas’ pride and identity is deeply entrenched here.”
The two sides have been engaged in peace talks ever since the NSCN(I-M) entered into a ceasefire agreement with the Central government in July 1997. The Government of India opened separate peace talks with the working committee of the NNPG, a group of seven Naga rebel groups, after signing an agreement with them in 2017.
“Naga Flag is Our Identity” read a banner at a rally taken out in New Delhi on September 25 by the Naga Students Federation (NSF) in collaboration with the Naga Students Union in Delhi. The participants also waved the Naga flag at the “Naga Rally for an Early, Inclusive, Acceptable & Honourable Solution of the Protracted Indo-Naga Peace Process”. On August 14, NSF units across Nagaland observed “Naga Independence Day” and hoisted the Naga flag. Nagaland Governor R.N. Ravi, the Government of India’s interlocutor in the peace talks, went on record in August as saying that Modi had expressed the need to conclude the Naga peace process within three months. Ravi claimed that “all substantive issues” had been resolved.
Unlike the NSCN(I-M), the NNPG has not taken a tough position on the issues of the flag and a constitution.
The NNPG, in a statement issued after a meeting with representatives of 14 Naga tribes on September 15, indicated its position, without directly referring to the flag and the constitution.
“The 14 tribes opined that what is possible at this hour, which is honourable and acceptable, Nagas must take. Symbolic issues that remain unresolved be pursued through continuous, consistent democratic and political process. The aspiration of the Naga people must be fully met in due course of time…,” it said.
“The WC [working committee], NNPGs acknowledge the advice of the 14 tribes and assure the Naga people that Indian leaders have demonstrated political will and commitment to solve the Naga issue this time around. A moment has come for Nagas to reciprocate equally. Naga negotiators are confident that a comprehensive political settlement will be announced soon,” it added.
In another statement issued on September 14, making an oblique reference to the flag, the NNPG said: “The rainbow with a star, to the Naga people, remains a source and force of Naga political struggle. It has a supernatural and divine connotation, which lives in every Naga hearth. The sentimental value and spiritual inspiration behind its origin makes it an emblem, an insignia and a Naga totem.”
The developments relating to the Naga peace talks indicate that two schools of thought have emerged among Naga civil society groups against a backdrop of the scrapping of Article 370. One looks at the flag and constitution as symbolic issues and holds the view that negotiations should continue in order to resolve it but that should not delay the signing of the final agreement. The other school of thought considers the flag and constitution issue integral to the core issues of the process and, therefore, a final settlement cannot be reached without these.
When the NSCN(I-M) signed the framework agreement with the Government of India in the presence of Modi on August 3, 2015, it triggered hope for an early resolution of one of South Asia’s longest armed conflicts.
New Delhi has not made public the contents or contours of the framework agreement. It has also not issued any clarification on the claims made by the NSCN about the content of the Framework Agreement, leaving room for speculation.
Rh. Raising, convener of the steering committee of the NSCN(I-M), while presenting the “Highlights on Indo-Naga peace process” on the 73rd “Naga Independence Day” on August 14, claimed that the “Framework Agreement recognises the sovereignty of the Nagas”.
He said: “The Framework Agreement was arrived at between the two entities on the basis of the unique history of Nagas. Understanding the reality of the uniqueness of Naga history, the Government of India recognises the sovereignty of Nagas, stating, ‘sovereignty of the Nagas lies with the Naga people’. By the unique history of Nagas, it means that Naga identity, culture and territory are also unique. Naga territories have never been ceded to any power. ‘Nagas are the owners of their land and mineral resources above and beneath the land,’ the agreement says.”
He claimed: “The agreement further says ‘co-existence of the two entities’. We all know that ‘co-existence’, by convention, applies to two or more entities, it does not apply to one entity. Indians and Nagas are two different entities. Nagas have not been a part of the Union of India by consent, but they will ‘co-exist with the Union of India as two entities’, it means. The two entities will be inseparably bound together by the cord of the Framework Agreement. The agreement also says, ‘shared-sovereignty’. Nagas do not accept the Constitution of India, but Nagas and Indians will share sovereign powers on the basis of the Framework Agreement.”
The Centre’s interlocutor has made it clear that there will be only one peace agreement though the Centre has been negotiating separately with the NSCN(I-M) and the NNPG. He has also been holding peace talks with the working committee of the NNPG since 2017.
Differing positions of the NSCN(I-M) and the NNPG on the issue of flag and constitution being a part of the final solution will make it difficult for the Centre’s interlocutor to get all stakeholders on board immediately to meet Modi’s deadline for concluding the Naga peace talks.
Limitations of Article 371A
Addressing the 68th Plenary Session of the North Eastern Council in Guwahati on September 8, Union Home Minister Amit Shah sought to allay apprehensions that the Centre would scrap Article 371, which has special provisions for the north-eastern States, and said that the Modi government respected Article 371. However, there was no clear indication if the Modi government would amend the provisions of 371A(1) (a) applicable to Nagaland. Article 371A states that no act of Parliament shall apply to the State of Nagaland in respect of the religious or social practices of the Nagas, its customary law and procedure, administration of civil and criminal justice involving decisions according to Naga customary law and ownership and transfer of land and its resources.
An amendment to this Article is critical to the ongoing Naga peace process in order to resolve another substantive issue of settling the question whether Nagas have the right over land and resources, both above and beneath it.
The limitations of Article 371 in fulfilling the aspirations of the Naga people came to light when the Nagaland Assembly unanimously passed a resolution on July 26, 2010, in exercise of its powers under Article 371A(1)(a) rendering inter alia all the Acts of Parliament governing petroleum and natural gas inapplicable to the State of Nagaland. Subsequently, the Nagaland Assembly passed another resolution on September 22, 2012, for framing “the Nagaland Petroleum and Natural Gas Regulations, 2012”.
Sub-clause (a) of Article 371A(1) reads as follows: Notwithstanding anything in this Constitution, 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.
However, in 2013, the Manmohan Singh-led United Progressive Alliance (UPA) government declared the Nagaland Assembly resolution “unconstitutional and invalid”.
The UPA government, in a letter to the Nagaland government on May 23, 2013, stated: “Article 371A(1)(a) does not confer legislative power to the Legislative Assembly of Nagaland on regulation and development of mineral oil. The power to make law in respect of subject covered under List-1 of the Seventh Schedule of the Constitution, including entry 53 of List-1, rests with Parliament. Therefore, the resolution passed by the Nagaland Legislative Assembly in July 2010 is unconstitutional and invalid.”
Nagaland petroleum and natural gas rules
The Kohima Bench of the Gauhati High Court passed an order on February 8, 2019, directing the Nagaland government and other State respondents not to initiate any action in terms of the Nagaland Petroleum and Natural Gas Regulations, 2012, and the Nagaland Petroleum and Natural Gas Rules, 2012.
The bench, comprising Justices Manas Ranjan Pathak and Manish Choudhury, stayed all consequential orders and actions of the State government, including a permit granted by the Nagaland Petroleum and Gas Board, on April 28, 2014, to the Metropolitan Oil & Gas Private Limited (MOGPL), New Delhi, allowing mixed operation of exploration, extraction, production, refining and bottling of petroleum and natural gas in Wokha district of the State.
The High Court ordered registering a suo motu public interest litigation petition after allowing the Lotha Hoho, a civil society organisation, to withdraw its PIL petition.
The bench stated: “Considering the provisions of Article 246 of the Constitution of India, the three Lists under the Seventh Schedule of the Constitution as well as provision of Article 371A of it, we came to the opinion that framing of the Nagaland Petroleum and Natural Gas Regulations, 2012, and the Nagaland Petroleum and Natural Gas Rules, 2012, involved legality and constitutional validity.”
The Sarkaria Commission had, in its report submitted in 1987, referred to the complexities in the implementation and interpretation of Article 371A(1)(a) in the Chapter on “Mines and Minerals”. The report states: “The Government of Nagaland has pointed out that all laws made by Parliament in respect of the four matters enumerated in sub-clause (a) of Article 371(1), irrespective of whether the laws were made before or after the Article came into force, viz. December 1, 1963, do not apply to the State of Nagaland unless the Legislative Assembly of the State so decides. According to the State government, if the State Assembly decides that a particular parliamentary law in respect of any of the four matters should not apply to the State of Nagaland, such a matter will fall within the legislative competence of the State Assembly.”
The Commission recommended that “dialogue and discussions should be carried out between the Union and the State government in a spirit of give and take and trust, as symbolised by the 16-point agreement between the Government of India and the Naga People’s Convention in 1960. The needs of the State and national interest would be best served by adopting a pragmatic approach to the whole issue.”
The 16-point agreement between the Naga People’s Convention and the Government of India signed on July 29, 1960, led to the inclusion of Article 371A in the Constitution in 1962 and the subsequent creation of Nagaland as a State on December 1, 1963.
In his speech on “Naga Independence Day”, Tuccu sounded a word of caution: “The 16-point agreement and the Shillong Accord of 1975 were no solution at all, rather they were historical blunders that led to further confrontations. Hence, it will be a great tragedy to repeat the same mistake.”
The writing on the wall for the negotiators on both sides is clear. The Naga people want an early solution to the Naga political problem and do not like to be held hostage by prolonged negotiations.
However, they also want the solution to be honourable and acceptable to all sections of the Naga people. The ball is now in the Modi government’s court.
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