The constitutional backsliding that began in Jammu and Kashmir is unlikely to have only localised consequences. The subversion of the constitutional guarantees given to a state of the Indian Union appear “legal” because it has been approved by Parliament and it might even perhaps be accepted by the courts. However, there is no denying that it has led to a perceptible erosion of federalism and the worth of constitutional guarantees.
An immediate fallout of the removal of the special status of J&K will be on the Naga peace talks, making an early settlement difficult. The Centre is currently trying to renegotiate the nature of the federal relationship between the Nagas and the Union of India. Constitutionally guaranteed autonomy, which has been summarily denied to the people of J&K, is being promised in full measure to the Nagas.
At issue is not just the future of Article 371A. Any settlement reached with the Nagas will lead to a modification of Article 371A. However, if it is to be credible, the new constitutional provision will have to be immune from abrogation unilaterally by Parliament.
At the centre of the negotiation are two issues — a new federal arrangement or the special status of Nagaland and Naga-inhabited areas recognising the “unique history and situation” of the Nagas; and the irrevocability of the settlement reached.
The Nagas claim that they were never a part of India by consent, conquest or accession. They mark their “difference” with India by celebrating Independence Day on August 14, a day before India does. This is to make the point that they cannot be claimed by India as a legacy of the British colonial power.
When the negotiations began with the National Socialist Council of Nagaland (Isak-Muivah) in 1997, initially, the Naga insurgent leaders wanted complete sovereignty. Subsequently they de-escalated this demand to propose that India and Nagaland should become “two nations inseparably bound” (in negotiations on January 21 2003 in New Delhi and again on May 23, 2003 in Bangkok).
Finally, they decided to seek a “special federal relationship” with India in their letter of April 1, 2004. In a framework agreement signed between NSCN (I-M) and the Centre on August 4, 2015, the two sides agreed on three broad issues — One, that the Naga situation was unique; implying that any settlement with the Nagas would not be predicated on what was done with other states or with other demands for autonomy. Two, that sovereignty would be defined by a clear sharing of powers between the Centre and the Naga people — meaning that while the Naga people remained sovereign, the exercising of sovereignty demanded that the State, Union and Concurrent Lists of the Indian Constitution be redistributed. And three, that the two sides would seek a mutually acceptable and peacefully negotiated solution.
It is the nature of the proposed sharing of competencies in the Union, State and Concurrent Lists of the Constitution which is the crux of the negotiations. In a sense, what has been taken away from the people of J&K is being sought to be given to the Nagas by negotiating the extent of autonomy they can enjoy while being a part of the Indian Union. Even if the main interlocutors of the Nagas, the leaders of the NSCN (I-M), were to come to some sort of a settlement with the Centre, they may find it difficult to sell it to their constituency in the wake of the developments in Kashmir.
There are two other issues on which the Nagas are unwilling to give up — a separate flag and a separate constitution. These proposals have also received a setback after the developments in J&K. Those who imagine India to be a unitary state cannot countenance such demands. A separate and official Naga flag seems out of the question, especially if the NSCN (I-M’s flag is adopted, bearing as it does the Star of David, which underlines the Christian majority of the Naga areas.
As for the constitution, there can hardly be a separate Naga constitution without convening a Naga Constituent Assembly. This is not something that a government in New Delhi would like, especially now. The NSCN (I-M) proposal that the agreement between the Nagas and the Centre itself be designated the Naga Constitution (called Yehzabo) and incorporated in the Indian Constitution again poses some serious problems. The peace accord would have to be adopted as the nominal Constitution of the Nagas by a representative body of the citizens of the Naga-inhabited areas. Can the government allow the convening of such a de facto Naga Constituent Assembly? Can the Nagaland Assembly assume the role of such a body? How will the Nagas in the adjoining states have any say in according the peace agreement the status of the Naga Constitution?
What could further complicate the protracted negotiations is also the role of the chief Indian negotiator, R.N. Ravi, recently promoted as governor of Nagaland. After the assurances that J&K governor Satya Pal Malik was giving to Kashmiri leaders even on the eve of the abrogation of Articles 370 and 35A proved false, no one is going to believe the word of a governor.
Already, the NSCN (I-M) has written a letter to the Prime Minister wondering why they were being asked to negotiate with the governor of Nagaland when one of the three primary commitments of the two sides for starting the negotiations was that the talks will be at the Prime Minister’s level — the other two were they would be without any preconditions and that they would be held in a third country, a provision the Naga leaders agreed to change once they decided to return to India from exile.
The Nagas rightly claim that the governor is a representative of the President of India and reports to him through the Union home ministry. Constitutionally, he can no longer claim to be the Prime Minister’s emissary for the talks, which will now also have to wait as the Nagas rethink their political future....