Adding fuel to the fire

Nagas are agitated over what they perceive as the Centre’s “threat” to override the exceptional status they enjoy under Article 371A of the Constitution. On June 13, Veerappa Moily, the Union Minister of Petroleum and Natural Gas, asked the Nagaland Legislative Assembly (NLA) to withdraw the Nagaland Petroleum and Natural Gas Regulation, 2012 (NPNGR) that it framed within the ambit of Article 371A. Taking a serious note of Mr. Moily’s request, the Nagaland government held a consultative meeting with various sections of civil society on July 12. The meeting resolved to not only reject Mr. Moily's request but also demand that the GoI implement the unfulfilled clauses of the Sixteen Point Agreement, 1960, and place Nagaland under the Ministry of External Affairs. This may set up a new confrontation with the Central government.

Mr. Moily’s request and the earlier stand taken by M. Ramachandran, Minister of State for Home Affairs, in a response to an unstarred question in the Lok Sabha on March 12 — that “any resolution” passed by the NLA “seeking to revoke/remove the applicability of a law, the enactment of which lies within the sole domain of Parliament, is ultra vires” — was seen by many in Nagaland as a move to betray a negotiated agreement which entrenched Naga exceptionalism in India’s federal polity.

Partial fulfilment

To recall, the 1960 Agreement laid the basis for the creation of Nagaland in December 1963. Article 371A, which was incorporated as a partial fulfilment of this agreement, facilitated negotiated sovereignty of the Nagas on matters pertaining to their religious and social practices, customary laws and procedure, administration of civil and criminal justice, ownership and transfer of land and resources, as the NLA can make any law of Parliament inapplicable by passing a resolution.

After obtaining the opinion of legal luminaries like H.M. Seervai, F.S. Nariman, R.C. Sirkar, and M. Hidayatullah in the 1980s, and that of Gopal Subramanium in February 2011, all of whom concurred that “land and its resources” as used in Article 371 A(1)(a)(iv) includes mines and minerals, the NLA passed a resolution on July 26, 2010 to the effect that laws made by Parliament on petroleum and natural gas would be inapplicable in Nagaland with retrospective effect. Drawing upon its special status, and after extensive legal consultation and advice, the NLA bypassed Entry 53 of List I of the Seventh Schedule and the Mines and Minerals (Regulation and Development) Act, 1957 (MMRDA), which exclusively invests mines and minerals as the “occupied field” of the Union, while framing NPNGR in December 2012. It has since suspended all oil operations in the State. Subsequently, it invited “Expressions of Interest” (EoI) from companies to explore and exploit the 11 oil and gas fields it identified across 11 districts of the State early this year.

What is interesting is the timing of Mr. Moily’s request and Mr. Ramachandran’s stand which came only after the Ministerial Group, the apex decision making body headed by the Nagaland Chief Minister, reportedly shortlisted seven of the 23 companies which expressed their interest. This is seen by some as an indirect outcome of pressure mounted on GoI by disgruntled oil lobbies which are losing out in the bidding process. The immediate spark however came from a letter by R.N. Choubey, Director General of Hydrocarbons, to the Petroleum Ministry in February wherein he asked the latter to discuss — what he considered the unilateral and unconstitutional move of NLA to invite EoI — with the Home Ministry and prevail upon Nagaland to rescind its move. Arguably, the stand taken by Mr. Moily, Mr. Ramachandran and Mr. Choubey can be seen either as constitutional oversight which ignores the special status that Nagaland enjoys under Article 371A or a deliberate attempt to foist a Centralist federal framework. Needed here is a contextual reading of the special status enjoyed by Nagaland under Article 371A, which supports the legislative competence of Nagaland to regulate and develop petroleum and natural gas — a legal position supported by the legal luminaries cited above.

Procedural issues

Yet, NPNGR raises a host of procedural issues which need immediate attention. Among the many, four may be identified. Firstly, NPNGR and the NLA’s July 2010 resolution did not expressly state their intent to take away the rights vested in oil companies while suspending their operations in the State, a point alluded to by Mr. Ramachandran's response and which is considered ultra vires of the Constitution by Gopal Subramanium in his legal advice to the State on February 18, 2011. Secondly, by requiring that only prospective companies “which have faith in the Naga customs and culture” could be granted land lease, a procedural complexity is embedded into the system because Naga customs and culture are not always neatly defined, and differ widely across tribes. Thirdly, by simultaneously recognising that land and its resources belong to three types of Naga landholders in perpetuity, viz., individuals, village bodies and the State, it may set apace a complicated lease negotiation process.

A pointer to this is the strong stand taken by various Naga tribe hohos (bodies) that no intermediary in land negotiation would be entertained and that land within their jurisdiction would not be allowed for petroleum and natural gas exploration unless it gets their approval. Given that major parts of the State have not, and are not likely to, come under cadastral survey, and given that many villages/tribes have overlapping and conflicting land claims, land lease negotiation could indeed be contentious. Lastly, even though the State wields de jure power to make law and regulate “ownership and transfer of land and its resources,” the emerging political process shows that de facto power is wielded by a melange of tribal bodies and Naga civil society. The inclusion of the presidents of Naga hoho and ENPO (Eastern Naga People’s Organisation) as permanent invitees in the apex decision-making body clearly indicates this. Even as the State gives in to societal pressure, its “infrastructural power” would considerably get compromised.

Future of negotiated sovereignty

These procedural problems are not insurmountable and need not subvert the substantive rights that the Nagas enjoy under Article 371A. However, given that the Article stems from a Centralist federal framework, there is a pertinent fear that the Central government may erode these rights in ways it did to the autonomy of Jammu and Kashmir.

Although the creation of Nagaland was considered “outlandish” and spawned the creation of perpetually dependent homeland States in the northeast in the 1970s and 1980s, large-scale discovery of petroleum and natural gas would fundamentally redefine the politics of redistribution between the Union and Nagaland, on the one hand, and individuals and tribal groups in the State, on the other. This would also offset the preferential funding regime that Nagaland currently enjoys. Given the sensitivity of the Naga issue, political prudence demands that future engagement need not always be driven by legal correctness as the Sarkaria Commission report had already noted in a different context. A political willingness to accommodate and entrench this Naga exceptionalism not as an anomaly but as a model of accommodating deep differences would hold the future key. This would inevitably take Article 371A to new constitutional waters.

(H. Kham Khan Suan is currently Fulbright-Nehru Postdoctoral Research Fellow, 2012-13 at University of Pennsylvania, Philadelphia, U.S., and Associate Professor of Political Science at the University of Hyderabad. Email: kksuanh@gmail.com)

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