New Delhi | The Supreme Court asked the Centre on Monday to clarify whether the constitutional scheme of one-third reservation for women in municipality and town council elections can be violated by Nagaland, where the assembly had passed a resolution to repeal the municipal act and resolved not to hold the elections to the urban local bodies (ULBs).
Observing that an "ingenious method" has been adopted to evade the undertaking given to the apex court about holding of the elections by repealing the Nagaland Municipal Act 2001, a bench of Justices S K Kaul and Aravind Kumar said it is an issue of women empowerment.
The top court had on April 5 stayed the March 30 notification cancelling till further orders the election to the ULBs in Nagaland which were scheduled for May 16 after almost two decades.
Following pressure from tribal organisations and civil society groups, the Nagaland assembly had passed a resolution to repeal the municipal act and resolved not to hold the elections.
On March 30, the State Election Commission (SEC) had issued a notification cancelling the election programme notified earlier "till further orders" in view of the repeal of the Nagaland Municipal Act 2001.
The apex court is hearing a petition seeking 33 per cent reservation for women in the elections to the local bodies in the state.
During the hearing on Monday, the bench asked Additional Solicitor General (ASG) K M Nataraj, who was appearing for the Centre, about the stand of the central government on this issue.
"We would like the ASG for the Union of India to assist us and put on record the stand of the Union of India on whether the constitutional mandate of one-third reservation in the municipality and town council elections, in the opinion of the central government, can be violated by Nagaland...," the bench said.
It noted that in context of Article 371-A of the Constitution, which pertains to special provision with respect to the state of Nagaland, nothing has so far emerged before it to show that religious or social practices of the Nagas and the Naga customary law and procedure deny the right of equality to women so far as participation in the electoral process is concerned.
The bench gave two weeks to the ASG to place the Centre's response on record.
"We have nothing personal but we are telling you it cannot be done. You cannot let a part of the country evade the constitutional scheme," the bench told Nataraj.
At the outset, the counsel appearing for the state referred to the sequence of events and said several groups have called for a boycott of the elections and, in such a scenario, the purpose of holding the polls would be lost.
"But we gave you a very, very long rope.... You seem to say this is not a men and women issue but to us it appears to be a men and women issue. For how long will this section of society (women) wait?" the bench asked.
It said women empowerment comes by education and also political participation.
"Every society had a period of time where there was male domination," the bench observed, adding, "If sometimes, the political dispensation does not do anything, then it needs a push from the judiciary".
When the state's counsel raised apprehension about violence in the polls, the bench remarked, "For 18 years, you have not been able to do it (conduct elections to ULBs). For every elections, due to threat of violence, the elections should not happen?". The state's counsel said they want to have a consensus and find a solution to this issue expeditiously.
"Eighteen years are not long enough for you? How can the court countenance a situation that despite the longest rope being given, every time it happens," the apex court observed, adding, "You cannot keep everyone happy".
"Frankly, to my mind, it is an issue of women empowerment," Justice Kaul observed.
When the state's counsel contended the government is not against reservation, the bench said, actually the state did not want quota for women and so it was repeatedly coming up with one issue or the other to stall the elections.
Senior advocate Colin Gonsalves, appearing for the petitioners, said the municipal act has been repealed.
"What is the stand of the Union of India?" the bench asked.
The ASG said the only reason a notice was issued to the Centre was for ensuring that adequate central forces are sent to the state for elections.
The apex court had noted in its March 14 order that the SEC counsel had submitted the elections will be held on May 16.
It had directed the schedule shall not be disturbed now and the election process completed in terms of the schedule.
The petitioners have moved an application before the top court through advocate Satya Mitra against the cancellation of the elections and urged it to take contempt action for "disobeying" the March 14 order.
Besides seeking quashing of the March 30 notification issued by the SEC cancelling the election programme, the application has also sought setting aside of the Nagaland Municipal (Repeal) Act, 2023.
"The order of this court dated March 14, 2023 despite making it clear that any endeavour to tinker with the local elections now would be in breach of the orders of the court either by the election commission or the state government. Notice both to the election commission and to the state election commission," the apex court had said in its April 5 order.
The SEC had earlier announced elections to the 39 ULBs in the state. Of the 39 ULBs, Kohima, Dimapur and Mokokchung have municipal councils, while the rest are town councils.
Several Naga tribal bodies and civil society organisations have opposed the ULB election under the Nagaland Municipal Act 2001, asserting it infringes the special rights for Nagaland guaranteed by Article 371-A of the Constitution.
The 2001 Act, which was amended later, made 33 per cent reservation of seats for women mandatory for holding the ULB elections, as directed by the Supreme Court.
ULB elections in the state have been long overdue with the last polls having been held in 2004