At last, reservation for women in Nagaland

With the 74th Amendment Act, 1992, which mandated reservation, on the expiry of the term of the municipalities and town councils they were to stand dissolved and all the male members who were elected from wards which had become reserved for women were deemed to have vacated their seats. This did not happen and male members clung to their seats for over a decade.

The state government remained adamant in their view that women were not competent to play a role in the governance of these institutions of local self-governance. What was even more surprising was that prominent sections of Naga society came out opposing reservation for women on the ground that reservation for women was contrary to customary practices in the state. Even the top leadership of the Nagas centred around the Ho-Hos and the underground leadership, otherwise so progressive, seemed unable to take a decision to further women’s empowerment. The failure of enlightened leadership in Nagaland was writ large.

The Naga government got away with false promises after false promise made to the HC and the SC that they would obey the constitutional mandate. As far back as 2009, after issuing a notice calling for fresh elections, elections were not held on some pretext or the other. The cabinet overruled the decision of the Election Commission (EC) of Nagaland deciding to hold elections in that year itself. The term of the members of the municipalities and town councils expired in 2010 and the councils automatically dissolved. The then minister, urban development, stated that reservation for women “would create confusion and also a divided house”. The chief minister’s speech in 2010 said that elections with 33% reservation for women could not be held “due to stiff opposition to the provision for women’s reservation”. He then announced that a decision had been taken to “postpone the municipal elections for some time”. He also informed that “this decision was taken after consultation with the tribal Ho-Hos”. He ended by “assuring everyone that the state government was committed to holding municipal elections soon”. This assurance given in 2010 has not been implemented yet.

In 2011, a single judge of the Guwahati HC set aside the cabinet decision of 2009 postponing the elections and rubbished the claim of the opponents of women reservation that Article 371-A of the Constitution did not allow for reservation for women because reservation was contrary to the customs of the people of Nagaland. No prevailing customs in Nagaland could be demonstrated then nor can it be so shown even today. However, this casual excuse resulted in postponement of elections for 15 years. Nagaland was the only state that remained defiant in the face of the constitutional provision contained in Article 243-T for 33% reservation for women.

When an additional excuse was given that the situation had become critical because of the threat of violence by certain tribal organisations, the HC held that “no special, emergent or unforeseen circumstance had been proved to avoid holding of elections”.

Even after this binding order the state filed an application in the HC informing the court that “the state has received various representations/memorandums from Naga Ho-Hos, Eastern Naga Peoples Organisations and different tribal organisations. There is a serious apprehension that the law and order situation will be disturbed in the light of the grievances expressed by various sections of Naga society.” Thus, “in view of the strong resentment and opposition the state assembly applied to the High Court for permission to implement the order for elections to be held only after a select committee reviewed the provision for 33% reservation for women.”

Then, incredibly, in an act of open defiance of the judiciary, the Nagaland state assembly in 2012 suspended elections thereby overruling the order of the single judge. The EC was taken aback by this unilateral decision of the state and informed the HC that the revision of the electoral rolls were already published in February 2012 but the elections could not be proceeded with because of the decision of the cabinet. The EC also complained that the suspension of the elections was done by the cabinet without any reference to the notifications issued by the EC for the holding of the elections and clearly stated that the suspension of the election process was “a violation of the directive of the Hon’ble Court”. Accordingly the EC sought an order of the Court “to resume the election processes”.

The HC dealt with this situation sternly saying “the law for reservation of 33% seats for women was framed by Parliament and adopted by the State legislative assembly. The law making agency itself cannot turn violator of its own laws. The opposition of various bodies cannot be reopened for discussion and has been elaborately dealt with earlier. The prayer for extension of further time is rejected. The state is directed to hold the elections within one month.”

This order was challenged before the Division Bench. Referring to the “touchy situation” the HC held that the state was entitled to a certain amount of “free play in the joints” and granted stay. This lack of spine had severe repercussions on the elections.

In 2016 the Naga Mothers Association filed a civil appeal challenging the order of the HC and the SC on the very first day stayed the HC order thus reviving the single judge’s order requiring elections to be conducted within one month. The state government in collusion with civil society groups opposing reservation started a violent agitation causing widespread loss of property. The Naga Mothers Association fearful of their lives were forced to extricate themselves from the SC petition. Mercifully PUCL immediately replaced them as petitioner. For the next eight years the state refused to correct its contempt of court. The matter languished in the SC as do many other matters of serious public interest, dying a slow death until it was taken up by the SC in 2023. The bench of the SC headed by justice Kaul (now retired) made it clear that the Court would not allow any more procrastination. Ultimately elections were notified for June 2024.

This article is authored by Colin Gonsalves, founder, Human Rights Law Network, India.