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Nagaland Legislative Assembly::July 12 meet on Article 371 (A) likely to be stormy
Source: Oken Jeet Sandham (NEPS)

Kohima, July 10 2013: After the recent direct questioning of the Constitutional validity of Article 371(A) by the Home Ministry with regard to the passing of the "Nagaland Petroleum & Natural Gas Regulations, 2012," by the "Nagaland Legislative Assembly" on September 22, 2012, the Constitutional interpretations with regard to the Article 371(A) have been going on.

Article 371 (A) (1)(a) says "Notwithstanding anything in this Constitution, --- no Act of Parliament in respect of:- (i) Religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) Administration of civil and criminal justice involving decisions according to Naga customary law, (iv) Ownership and transfer of land and its recourses, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by resolution so decides.

The Nagaland Legislative Assembly, in exercise of its powers under Article 371 (A) (1)(a) of the Constriction of India, had unanimously passed a resolution on the 26th July, 2010 rendering inter alia all Acts of Parliament governing petroleum and natural gas inapplicable to the State of Nagaland.

At the same time, the Union of India, while replying in Lok Sabha to a question raised on the issue on the 10th March, 2011, declared that the state of Nagaland has the power to frame rules for governing matters relating to "petroleum and natural gas" within the territory of Nagaland" .

Now with these in mind, the Nagaland Legislative Assembly has passed the "Nagaland Petroleum & Natural Gas Regulations, 2012" on September 22, 2012.And then subsequently the Nagaland Government invited "Expressions of Interest (EoI)" from oil companies after setting up a ministerial group on petroleum. Now the Union Home Ministry came down heavily to the Nagaland Government terming the Nagaland Legislative Assembly's resolution "empowering itself with the right to legislate on oil and gas related issues is unconstitutional and invalid" .

Reacting to the Home Ministry statement, Minister for Planning and Coordination, Evaluation, Geology and Mining, TR Zeliang dismissed the Home Ministry statement saying that "Whatever we have done is Constitutional" .

Talking to media persons here Wednesday, the Senior Minister said, "We are doing this under the Article 371 (A)(1)(a) and also this particular Clause was referred to the Point 7 of the 16-Point Agreement" .

"Delhi is trying to create confusion," Zeliang fumed saying, "They can't do like this" .

Interestingly, the reply given by the Solicitor General of India, Gopal Subramanium on the "Ownership and transfer of land and its recourses in respect of minerals including petroleum and natural gas" in Nagaland has given very clear picture that the State of Nagaland was empowered to frame legislation on oil and gas related issues.

He also explained with regard to the resolution so adopted by the Nagaland Legislative Assembly whether it was in line with the provision of Article 371 (A) of the Constitution.

He said, "To have a better understanding of the provision it is necessary to examine the historical circumstances leading to the creation of State of Nagaland (hereinafter referred to as the State).

..

The Special provisions made applicable to the State are invariably a result of the special historical circumstances and while interpreting the special provision the same should be kept in mind" .

The Solicitor General of India concludes: "Therefore, in legal parlance the term 'land' signifies not only the earth's surface but also applies below and above the surface.

It is not only confined to solids but may encompass within its bounds such things as gases and liquids.

Thus, the term "land and its resources" in Article 371(A) to Mines and Minerals, even though a declaration as envisaged by Entry 54, List I of Schedule VII has been made by the Union through Section 2 of the Mines and Minerals (Development and Regulation) Act, 1957, the State of Nagaland would have the power to frame its own laws regarding ownership and transfer of such land and resources under Article 371 (A)" .


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