Can Nagaland Breach Mandate For Women Reservation In Local Bodies By Repealing Municipal Law? Supreme Court Seeks Centre’s Stand

On Monday, the Additional Solicitor General, KM Nataraj informed the Bench comprising Justice SK Kaul and Justice Aravind Kumar that two Ministries of the Government of India are involved and they are deliberating on the issue. In view of the same, he sought two additional weeks’ time to file the response.

The Bench was considering a contempt plea alleging non-compliance with its order dated 14th March, 2023, directing the Nagaland Government and the Nagaland State Election Commission to hold local body elections with 33% women’s reservation. On the first date of the hearing of the contempt plea, notice was issued to both the Election Commission and the State Election Commission. The Court also stayed the notification canceling the election. The State Election Commission had 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option but to notify the cancellation of the election as the Nagaland Municipal Act and the Rules therein had been repealed.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 the last occasion, the Bench had issued formal notice to all the other relevant entities.

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. In January, 2023, the State Government had asked the SEC to provide an election schedule. In response, two options for notifying the election programme have been provided by the SEC. The Apex Court had directed the SEC 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 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 the last date of hearing the Advocate General had emphasised had resorted to Article 371A of the Constitution of India that contemplates 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. However, the Court noted that the State Government 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.

While adjourning the matter, on Monday, Justice Kaul told the Advocate General for the State of Nagaland, KN Balgopal, “You are showing no intent to implement the constitutional mandate, after having given us assurance.”

The Advocate General submitted that post the formation of the new government of Nagaland in 202, the first meeting held was on the said issue. It was decided that the local body elections would be held with women’s reservation. However, he pointed out that the calls for boycotting elections by the majority of the tribal bodies is an impediment in the Government’s intention to hold elections.

Hearing the Advocate General, Justice Kaul remarked, “You got elected on a mandate that you would do it. You also have a political mandate.”

The matter will be next listed on 18th May, 2023.

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