Nervous Nagaland makes an old mistake while reaching for a shortcut to bypass women's quota

The Nagaland government is fighting for survival. Its decision to hold municipal elections with 33% reservation for women invited a violent backlash from tribal groups who said it interfered with Naga customary laws and the protections guaranteed to them under Article 371 (A) of the Constitution. As the clamour for Chief Minister TR Zeliang’s resignation grew louder over the past week, the state cabinet turned to the Union government to pass an ordinance to bail it out.

The ordinance would exempt Nagaland from obligations under Part IX A of the Constitution, which deals with the composition of municipalities. Article 243T of this section mandates that 33% of the seats in a municipal body should be reserved for women.

The state government seems to have reasoned that if it did not have to implement this provision, the protests would die down and Zeliang would not have to resign – problem solved. Except, a Central ordinance would be another instance of the top-down, opaque decision-making that pushed the state to this crisis in the first place.

The dithering

The wild oscillations of the Nagaland government have added to the confusion over women’s reservations. In the course of a decade and a half, the state government has changed its legislative position on the issue several times, almost always under pressure from one side or the other, without going through the process of dialogue required to ease in social and political reforms.

Even though the 74th amendment to the Constitution, which introduced Part IXA, came into force in 1993, it was eight years before the state Assembly passed the Nagaland Municipal Act. The Act of 2001, passed by the Congress government of the time, laid down guidelines for municipal elections in accordance with Constitutional provisions. But it made no mention of reservations for women initially. Municipal polls were duly held in 2004.

It took a lawsuit filed by women’s groups in the Gauhati High Court to pressure the government to amend the Act. In 2006, the ruling Nagaland People’s Front introduced 33% reservation for women in urban local bodies.

But the change remained on paper. While the Naga Mothers’ Association went to court, pressing for reservations to be implemented, tribal councils dominated by men protested against it. The government stalled against holding polls but came out in support of both sides. On one hand, it professed concern about customary laws, on the other, ministers made public statements in favour of reservations.

The legislative process soon found itself at odds with the legal process set off by the Naga Mothers’ Association.

In December 2009, the government of Nagaland took a cabinet decision to indefinitely postpone municipal polls, due in 2010, and dissolved the existing council. It cited law and order concerns as a reason for this measure. But in 2011, the Gauhati High Court quashed the cabinet decision.

In 2012, the state Assembly passed a resolution exempting the state from reservations, claiming they went against the provisions of Article 371 (A). Under this Constitutional provision, no act of Parliament that interfered with Naga customary laws would be implemented in Nagaland unless the state Assembly passed a resolution allowing it.

Last year, after the Supreme Court ordered elections with 33% reservation, the state legislature executed another volte face. In November, it revoked the 2012 resolution, reinstated the amendments of 2006 and scheduled elections for February 1, where one third of the candidates would be women. The government reasoning this time was that Article 243T was a Constitutional provision and not an act of Parliament, so the protections extended by Article 371(A) did not apply.

After massive protests broke out, candidates withdrew under pressure and tribal groups called for statewide shutdowns, the government sent out more confusing signals. On January 30, it appeared to come to a compromise with tribal groups and agreed to postpone the elections.

The next day, after an order from the Gauhati High Court, it reversed this decision. Polls would be held as scheduled in 12 of 32 municipalities, the government announced. In the remaining areas, they would be postponed for two months. But escalating violence prompted the state election commission to withhold polls in all areas.

Now, a beleaguered government appears to have abandoned all pretensions of upholding women’s reservations. In asking for a Central ordinance, it also seems keen to pass on the onus of decision making to Delhi.

Delhi diktats

Yet the opposition to women’s reservation always stemmed from the fact that it was a condition imposed by a remote Centre, which had no knowledge of local contexts. It appeared to disrupt, moreover, the fragile status quo between Delhi and the Naga tribes that have waged a struggle for self-determination which predates India itself.

In the decades after Independence, as Naga nationalism swelled into an armed uprising, the State responded with force. In that violent era, Article 371(A) – introduced in 1960, granting special status to Nagaland and promising to protect tribal customary laws – forged a limited compromise between the Centre and Naga society.

It granted the Naga tribes some degree of autonomy, and grew into a buffer between the alien laws of Delhi and the traditional laws that have shaped local communities for centuries. These customary laws, as social scientist Walter Fernandes puts it, had become a “non-negotiable part” of Naga identity.

Over the last few months, tribal bodies leading the agitation have argued that reservations may apply to communities in the mainland but they had no place in Naga society, which was structured differently and did not discriminate against women. This logic was, of course, opposed by women’s groups, who fought for political participation in what they found was a deeply patriarchal society.

At no point did the state government attempt to make a convincing case for women’s reservation, or to mediate between the two points of view through dialogue. Instead, it imposed conditions in the form of ad hoc, knee jerk laws. The two-month delay in polls was to make space for consultations with various groups, but even that seems to have been abandoned.

A Central ordinance at this point may be an escape route for a nervous state government. But it would be another decision flowing from a remote authority, instead of consensus on the ground.