"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, September 13, 2010

Resolution of the Assam Nagaland Border Dispute by Mediation

On 20th August 2010, the Supreme Court of India directed the decades old Assam Nagaland border issue to be resolved through mediation. A Two-judge bench consisting of Markandey Katju and T.S. Thakur, JJ ordered constitution of a panel consisting of two mediators who would, according to the Court, work under its auspices.

History of the Assam- Nagaland Dispute:

Prior to 1957, Naga Hills was a District in the State of Assam. In 1957, an area in the State of Assam, known as the Naga Hills Tsuensang Area was made a Union Territory. On 4 September 1962, due to popular demand for a separate state, the State of Nagaland Act (Act) was passed by the Parliament establishing the State of Nagaland on the Appointed Date. S. 3 of the Act read:

Section 3 - Formation of State of Nagaland

(1) As from the appointed day, there shall be formed a new State to be known as the State of Nagaland comprising the territories which immediately before that day were comprised in the Naga Hills-Tuensang Area and thereupon the said territories shall cease to form part of the State of Assam.

(2) Without prejudice to the power of the State Government to alter the appointed day, the name, extent or boundaries of any district, the State of Nagaland shall consist of three districts to be called the Kohima district, Mokochung district and Tuensang district, each comprising the areas respectively set out in the Schedule.”


1963:    The Act had defined the “Appointed Day” in Section 2 as:

(a) ‘appointed day” means the day which the Central Government may, by notifiation in the Official Gazette, appoint;’

On 1st December 1963, the Appointed Day, the State of Nagaland was formally inaugurated, thereby making it the 16th State in the Union of India.

Dispute:

The dispute is about Nagaland claiming about 1200 square kilometres of area in Assam. Nagaland has,claimed that the said area belonged to it prior to the British occupation but the British had excluded these areas for economic and administrative convenience. Assam disagreed. It argued that the areas demarcated were natural boundaries between the two states and the same had been accorded constitutional status.

The border disagreement led to several clashes between the people of both states. BK Nehru, the then Governor of Nagaland and Assam had arranged a meeting in February 1970 between certain ministers of both States. Unfortunately, the meeting failed to bring any resolution of the dispute. In 16th August, 1971, KVK Sundaram Commission was appointed by the Government of India to study the problem and recommend measures to the Government.

On 2nd May 1972, both the States signed a peace accord to maintain peace between the States. Despite that, there are several armed conflicts between people of the two states.

An original suit was filed under Article 131 (Original Jurisdiction of the Supreme Court) by the State of Assam against the Union of India in 1988 for identification of the boundaries between the States of Nagaland, Assam and Arunachal Pradesh. On 13th September 2004, the Supreme Court ordered for the appointment of a commissioner under Order XLVI of the Supreme Court Rules, 1966 read with Order XXVI Rule 9 of the Code of Civil Procedure, 1908, after consultation with all the parties. The States were asked by the Court to:

cooperate with the Commission and render all possible assistance so that the Commission can function and smoothly discharge the duties, assigned to it by this Court.

Despite the above order, the State of Nagaland did not file an affidavit or do anything to comply with the SC Order. A final opportunity was given on 11th September 2006 by the Court to the Chief Secreatary of Nagaland to comply with the above direction. On 25th September 2006, the Supreme Court appointed Hon'ble Mr. Justice S.N. Variava, a former Judge of the Supreme Court as the Chairperson of the Local Commission ordered to be constituted in its September 2004 order. Justice Variava was to be assisted   by   Mr.   Kamal Naidu, Retired Principal Chief Conservator of Forest, Andhra Pradesh, and Mr. S.P. Goel,   Additional   Surveyor   General of India, as Members. The mandate of the Local Commission was to “identify the boundaries between the States of Nagaland, Assam and Arunachal Pradesh”. The court also held:

We may, however, clarify that this Local Commission is not the boundary commission postulated by the Constitution of India and that all factual and legal objections are kept open for the parties to be urged and   agitated   after   the   receipt   of   the   Report from the Commission. None should be taken to have given up any right on agreeing to the appointment of this Local Commission.  We hope that the Local Commission will be able to furnish the Report within a period of one year or such extended time, as may   be considered   necessary   by   this   Court. It would be open to the Commission to seek such directions from this Court, as deemed necessary.”

Justice Variava had expressed his inability to continue as the Commissioner. Hence, Retired Justice Tarun Chatterjee of the Supreme Court of India was appointed in his stead vide order dated 20th January 2010.

Order dated 20th August 2010:

On 20th August 2010, a Division Bench of the Supreme Court consisting of Markandey Katju and T.S. Thakur, JJ. stated:

[W]e are of the opinion that apart from the proceedings before the Local Commission appointed earlier by this Court, an attempt should also be made to resolve the dispute between the State of Assam and State of Nagaland by mediation.”

The court appointed “two of the foremost experts in mediation in India”, Mr. Sriram Panchoo, Senior Advocate, High Court of Madras and Mr. Niranjan Bhat, Senior Advocate, High Court of Gujarat, as the co-mediators. The major terms of the reference are summarized below:

1.      The Mediators shall have one assistant and the help of experts for the mediation.
2.      The Union Home Ministry shall be associated with the mediation.
3.      After three sittings, a preliminary report shall be filed by the mediators as to whether the dispute is capable of being resolved between the parties by mediation.
4.      On receipt of a positive reply from the mediators, the period of mediation may be extended with the consent of the parties.            

The Court also clarified that the mediation proceedings were to be independent of the proceedings before the  Commission appointed by the Court vide its previous orders (noted above).

The Order dated 20th August 2010 can be accessed from here.

For further information on the dispute and related aspects, check out the below links

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