New Delhi: The Supreme Court on Tuesday, July 25, said the BJP-led Union government takes “extreme stands” against state governments that are not amenable to it, but when the Nagaland government – where the BJP is an ally – is violating the constitutional provision of reservation for women, it says nothing.
These observations were made orally by Supreme Court Justice S.K. Kaul, who along with Justice Sudhanshu Dhulia was hearing a case about the state’s non-compliance with earlier directions issued to hold local body polls after ensuring that 33% of the seats are reserved for women. The issue has become contentious in Nagaland, where political representation for women has been nearly non-existent.
According to LiveLaw, Justice Kaul noted that the same political dispensation was in power in Nagaland and at the Centre. He added:
“You have to be roped in….You are one political dispensation so it would be easier for you to actively participate. I refuse to let your hands off. You take extreme stands against other State Governments who are not amenable to you, but your own State Government is violating Constitutional provision and you do not want to say something.”
In April 2023, the top court had asked the Union government to place on record whether the constitutional scheme of reservation for women in local bodies, guaranteed in Article 243D of the Indian constitution, applies to Nagaland or if an exemption has been granted. While the government has yet to file an affidavit. additional solicitor general K.M. Nataraj orally submitted that he had already indicated that the constitutional scheme of reservation extends to Nagaland.
The state government, led by Neiphiu Rio, has said that Article 371A – which makes certain special provisions to the state – allows it to conduct local body elections without reservation for women. Article 371 holds that when parliament passes an Act on matters pertaining to “Naga religious and social practices; Naga customary law and procedure; administration of civil and criminal justice involving decisions according to Naga customary law; ownership and transfer of land and its resources”, it will not apply shall apply to the state unless the legislative assembly by a resolution so decides.
However, Raju said that the article does not deny the right of equality to women so far as participatory processes are concerned.
Justice Kaul then asked why reservation for women was not being implemented and what the Union government was doing about it. “Politically also you are on the same page. It is your government in the state,” he said.
The advocate general (AG) for Nagaland, K.N. Balgopal, sought some time from the court to “impress upon the relevant political dispensation that the only way forward is to implement the mandate of having one-third reservation in the municipalities”, according to LiveLaw. Justice Kaul noted that such a request has been made by the AG for the “nth time”, but granted him “one last of the last opportunity”.
Nagaland has held only one local body election so far, in 2004, which did not comply with the mandate for 1/3rd reservation for women. An attempt to hold the elections in 2017, with women’s reservations, had to be called off due to violence.
While the Rio government wanted to hold elections in May this year without the quota for women, the top court stayed the order. The government then said it would hold the elections with the constitutionally mandated reservation, but then asked the State Election Commission to cancel them. Rio received a contempt notice from the top court for not honouring the Supreme Court’s order.
‘Law before social change’
Justice Kaul said during the hearing that reservation ensures that a minimal level of representation for all sections of society. “Reservation is a concept of affirmative action. Women reservation is based on that. How do you get out of the constitutional provision? I do not understand this,” he said, according to LiveLaw.
AG Balgopal said that calls to boycott local body elections, if held with the quota for women, by a majority of tribal bodies was an “impediment” to the present government’s “intention to hold elections”.
However, Justice Kaul said that these organisations have the right not to participate in elections but that should not prevent the state government from implementing the mandate of the constitution. He asked, according to LiveLaw:
“Why [is there] resistance to participation of women when in all walks of life, women are equally involved? Why do you hesitate in giving even one-third representation?”
To this, Balgopal said that he had “personally met” some women’s organisations in Nagaland, and that the members of one major organisation said that “they do not want reservation”.
Justice Kaul rejected this, saying:
“When a social progression takes place it is the law often that comes first and that often becomes an impetus for social change. If anything was left to be done voluntarily many things would not have happened after 1950. Do you think men under Hindu law would have agreed to have only one wife? The rights of women in estate and property would have arisen?”
“There is always resistance to change of status quo. But, someone has to take initiative to change the status quo for the better.”