Is drafting a fresh legislation on ILP the answer ?

Lt Col Laishram Lokendra Singh (Retd) *

ILP : Bandh/Strike for Implementation Of ILPS at Singjamei Wangma on June 24 2016 :: Pix - Shankar Khangembam

The Protection of Manipur People Bill, 2015 has been withheld by the President of India, while the other two Bills namely the Manipur Land Revenue & Land Reforms (Seventh Amendment) Bill, 2015 and Manipur Shop & Establishment (Second Amendment) Bill, 2015 are still under examination by experts as per media reports.

On query from those in the establishment, it was learnt that the President withheld assent from the Bill on 11th May, 2016 and the letter was despatched from Ministry of Home Affairs on 19th May, 2016 but the same was received by the State Government only on 6th June, 2016. Why there is so much delay in the speed post is a matter of conjecture? Be that it may be, now there is demand for drafting a fresh legislation which can muster the assent of the President while incorporating provisions which will provide protection to the indigenous people.

While drafting a fresh legislation, one should try to understand the reason why the President withheld assent from the Bill passed by the Manipur Legislative Assembly unanimously on 31st August, 2015 so as to preclude the possibility of the next bill also being withheld once again. However without reading the file on which the matter was processed in MHA, it would not be feasible to know the exact reason.

In any case the fact of the matter is while assenting or withholding assent, the President is not bound to give the reason for his decision and his decision is final and there is no judicial review. Thus, the only option is to read between the lines and try to understand the possible reason.

One of the reasons may be the strong opposition from the hill areas to the Bill. But having said that the demand that it should have been first considered by the Hill Areas Committee is misleading in that it is a Money Bill and under Para 4 of the Manipur Legislative Assembly (Hill Areas Committee) Order, 1972, money bills are excluded from consideration by the HAC. Further, HAC has purview on all scheduled matters in so far as they relate to the Hill Areas and every bill, other than money bill, affecting partly or wholly the hill areas and containing mainly provisions dealing with any of the Scheduled matters.

The subject matter of the PMP Bill does not fall within the domain of the Scheduled matters which are
(i) Development and economic planning within the Plan allocation of the Hill Areas,
(ii) Constitution and power and functioning of the District Councils,
(iii) Allotment, occupation or use or the setting apart of land, which are not reserved forest for the purpose of agriculture or grazing or for residential purposes or for any other purpose likely to promote the interest of the inhabitants of any village or town situated within the Hill Areas, excluding areas acquired under any law,
(iv) The management of forest which are not reserved forest, (v) The use of canal or water course for purposes of agriculture,
(vi) the regulation of the practice of jhum or other form of shifting cultivation,
(vii) establishment of village committees or councils and their power and other matters relating to village administration,
(viii) public health and sanitation,
(ix) appointment or succession of Chief or Headman,
(x) inheritance of property,
(xi) marriage and divorce, and
(xii) social customs.

The content of the PMP Bill does on touch upon any of the Scheduled matters and hence, consideration by the HAC does not arise. Even if it touches upon any of the scheduled matters, as it is a money bill, consideration by the HAC is out of question.

The definition of a “Money Bill” is provided under Article 199 of the Indian Constitution and this Bill which envisages expenditure out of the Consolidated Fund of the State will come under Article 199 (1) (d) the appropriation of money out of the Consolidated Fund of the State. Considering the above facts, it may be safely presumed that the withholding of the assent from the PMP Bill is perhaps not related to the opposition from the Hills.

The next possible reason is the competency of the Manipur State Legislative Assembly to pass such laws. All citizens of India shall have the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India as provided under sub-clause (d) and (e) of clause (1) of Article 19.

But this fundamental right is not absolute as under clause (5) of Article 19 the operation of existing law curtailing this right shall not be affected or prevent the State from making any law imposing reasonable restrictions on the exercise of rights given above in the interest of general public or for protection of the interests of any Scheduled Tribe.

The term State occurring in this sub-clause is a matter of debate with some interpreting literally as state government. In the Constitution in Article 12 “the state” includes the Government and parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Thus, the term “State” occurring in clause (5) of Article 19 when it comes to law making need to be read along with Article 246-subject matter of laws made by Parliament and by the Legislatures of the States, which is listed out in the three list in Schedule Seven to the Constitution.

Matters listed at List-I Union List falls within the purview of the Parliament, matters listed in List-II State list within the purview of the State legislatures and those occurring at List-III Concurrent list both by the Parliament and the State Legislatures. The PMP Bill, 2015 curtails the free movement of Indian citizens as non Manipuri have to make entry etc. This will come under inter-state migration which is listed at Entry 81 of the Union List and hence only the Parliament has the authority to legislate on this matter.

If the state legislatures are given the powers, every state may enact laws which may contradict each other and the whole principle of federalism may be destroyed. It is therefore very likely that the PMP Bill, 2015 do not stand the test of competency of the State Legislature to pass such a law and thus could not muster assent of the President.

Law making is a very serious business and it should not only be for the benefit of the people but based on reason and rationale and not on emotion. Bursting of emotion, may be good for the copy writers but not for the society as a whole. Hence, all political parties should sit together and work out the best solution especially before the operationalisation of the Integrated Check Post at Moreh and the coming of trains up to Tupul, which will put tremendous pressure on the people of the State and on the land.