The Centre has sought to curb Nagaland’s constitutional right to regulate petroleum and natural gas extraction, ignoring its special status under Article 371A
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)