Customary laws vs. Gender equality in Nagaland

Reservation for women in Urban Local Bodies (ULBs) has caused a serious unrest in the state of Nagaland in the north-eastern region of India. Women’s groups in Nagaland have been leading a struggle for 33 per cent reservation in the local bodies on the grounds of gender equality. On the other hand, tribal bodies and groups (consisting mostly of men!) including the Naga Hoho (the apex body of all 18 tribes in the state) and the Joint Coordination Committee of tribals (JCC) have been opposed to the demand on the grounds that granting 33 per cent reservation for women would violate Naga customary laws and tradition as protected under Article 371(A) of the Constitution of India. Thus, customary laws and the notion of gender equality have been pitted against each other. This calls for serious examination of customary laws and the demand for reservation.

The elections for 32 ULBs were notified on December 21, 2016 and the process for filing nominations began. However, as soon as the dates were notified, tribal bodies called a boycott to oppose the 33 per cent reservation for women. Women who filed their nominations were asked to withdraw their nominations by these groups and many did so. No nominations were filed in several ULBs due to the call of boycott. After some flip-flop due to pressure by tribal bodies, it was on January 31, 2017, that the state government finally decided to conduct polls in 12 of the 32 municipal bodies in the state following the recent directive from the Guwahati High Court. Following this, unrest began in the state. The JCC called for a ‘bandh’, youth came out on the streets and called for boycott of the elections. Two persons unfortunately died in Dimapur due to police firing in the ensuing violence. Prohibitory orders under Section 144 were imposed in several areas. Violence was also reported from Kohima and Mokochung districts where protestors destroyed several government offices and vehicles.

The struggle for reservation

The demand for 33 per cent reservation in ULBs has seen some proactive struggle by women’s groups in Nagaland in recent years. Together with this, the issue has seen opposition by tribal groups and flip-flops by the state government. Even though the 74th amendment of the Constitution was passed in 1993 which provided reservation for women in ULBs, it was not adopted in Nagaland. The Nagaland Assembly passed the Nagaland Municipal (First Amendment) Act in 2006 which provided for 33 per cent reservation of seats for women. However, the Act was not implemented as questions were raised regarding protection of Nagaland’s customary laws under Article 371A of the Indian Constitution. Hence, elections to the municipal bodies could not be held for the next six years.

In February 2009, Naga women’s groups led by Naga Mothers’ Association (NMA) had unanimously adopted two resolutions: one in favour of immediate support for women’s reservation in the state assembly through the Women’s Reservation Bill of 2008, and second, the reservation of seats in the local bodies as per the Nagaland Municipal Council Amendment Act 2006. Later, a writ petition challenging the state government’s refusal to hold municipal elections was filed before the Kohima Bench of the Guwahati High Court on June 26, 2011 by women’s groups.[1] The government, however, put forward various arguments and also claimed that implementing such a law would ‘upset the peace’ in Nagaland.

In October 2011, a single-judge bench of the court upheld the petition and directed the government to hold the elections to municipal councils and town councils on or before January 20, 2012. But before that could happen, the state government filed an appeal before a division bench of the Guwahati High Court and the previous ruling was stayed. Meanwhile, the Hoho and other tribal bodies took recourse to the Nagaland State Assembly’s resolution of September 22, 2012, which too had opposed reservation for women in civic bodies. It is to be noted that on that day, the Assembly through its resolution had rejected women’s reservation on the ground that it infringes on the social and customary practices of the Nagas, the safeguards of which was enshrined in Article 371(A) of the Constitution of India.

The petitioners led by Joint Action Committee for Women Reservation (JACWR), however, moved a Special Leave Petition in the Supreme Court in September 2012 and finally got a ruling on April 20, 2016 wherein the Supreme Court upheld the single-judge ruling of the Guwahati High Court of October 2011. In between, the state government made a u-turn and passed the Nagaland Municipal (Third Amendment) Bill 2016, which revoked its September 2012 resolution and cleared the way for women reservation in the civic bodies. Finally, on January 31 this year, the state government decided to conduct polls in 12 of the 32 municipal bodies in the state following the recent directive from the Guwahati High Court.

Analysing Article 371 A (1): ‘Tradition’ versus ‘modernity’

Let us look into the grounds of opposition to this demand. Naga bodies have opposed it on the ground that it violates Article 371(A) of the Indian Constitution. Article 371A(1) of the Indian Constitution says that “no Act of Parliament in respect of- religious or social practices of the Nagas, customary law and procedure, ownership and transfer of land and its resources- shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides”. This provision was incorporated in the Constitution of India at the time of creation of Nagaland in 1963.

Several points need to be considered here. First, though the Article prohibits interference from the Parliament, what happens when a genuine demand or grievance gets raised by the people of the state? It is correct that the Nagas have had historical distrust over interventions coming directly from the Central Government, but the current demand for reservation is not so. It is a demand from the women (who are also Nagas) of the state. Women’s groups have emphasised that the provision of reservation has not come about through an Act of Parliament, but is a part of the Constitution under Article 243T. Naga women have also argued that when reservation for women has existed in the village development boards since 1980, then why this opposition to reservation in ULB in the name of customary traditions?  

The current issue has brought the contradictions in Naga society, especially with regard to women’s status to the forefront.

The second point is about modern systems of governance and institutions that did not exist in traditional structures, e.g. urban bodies, and towns and municipalities. Women’s groups have pointed out that ULBs were not a part of traditional Naga society, and hence customary laws cannot be applied to the way urban areas are governed.

The third point to consider is what if customary laws come into conflict with modern notions of equality and justice- in this case, women’s rights. Should not then what stands for ‘customary laws’ be questioned? The notion of customary laws often hides the fact that who benefits and who loses from these. As these laws extend to an overarching domain from social practices to land and resources, states like Nagaland in the northeast, for example, do not have land laws (and we do not have any idea of land ownership in the state) or property rights for women (except acquired property). Even the existing legal practices are at times in conflict with modern notions of law and legality, which in turn adversely affect women in the state.[2]

Contradictions in Naga society: Lack of political-economic rights for women

The current issue has brought the contradictions in Naga society, especially with regard to women’s status to the forefront. It is correct that in terms of social status and educational attainments, women in Nagaland seem to be in a relatively better condition than many Indian states, and this fact must be sincerely acknowledged. Despite a low per capita income, the literacy rate of the state is 80 per cent and that of females is 76 per cent. Crimes against women are generally low and women are treated with respect. Girl children are cared for and infanticide does not exist; dowry deaths and starvation deaths are unheard of. Also, women can divorce their husband anytime. Overall, women in the state can be seen to be involved in a number of spheres: fields, forests, markets, academics, activism, house-work, etc. However, it is in the realm of political and economic rights that the differences arise. Firstly, Naga women are poorly represented in decision-making and political sphere. Nagaland has never elected a woman legislator to the Assembly since it gained statehood in 1963 and there has only ever been one Naga woman elected to Parliament, Rano Shaiza, in 1977. Secondly, women’s right to ownership of land remains highly restricted in the state. They cannot inherit ancestral property and can only get a share of acquired property as a gift.

Critiquing customary laws: Building equitable and just society

Naga women have contended that the demand for 33 per cent reservation in ULBs is a welcome step to encourage women’s participation in the decision making. And the men should welcome this policy so that women can also contribute their ideas for the better planning and management of their cities and towns. Thus, this struggle goes beyond electoral representation to a gender-just society. The NMA, during its long struggle for 33 per cent reservation, has been of the view that over the years “only the men spoke, the men’s voices were heard and the men decided against women reservation, all in the name of upholding the Naga custom of gender equity and Article 371A(1)”. And the 33 per cent reservation would give “fillip to the realisation of gender equity under the customs of Nagas into a workable reality, which has been missing for all these decades”.

The women’s struggle in Nagaland shows that like other places and societies, the demands of political and economic rights, in this case women’s equality, often bring out the contradictions existing in a society. Popular discourses on tribes and northeast region often overlook such contradictions and instead tend to highlight ‘customary traditions’ or ‘harmonious relations’. The current struggle in Nagaland is a useful reminder that in the northeast it is now time that the customary laws/traditions be critically examined. In a way, this struggle is also between tradition and modernity, and will have important consequences for Naga society. The state government must not buckle down this time under pressure. Naga women have shown the way and they must be wholeheartedly supported in their struggle of building an equitable and gender-just society.

 

NOTES

[1] The women’s wings of the 16 major Naga tribes of the state came together to form the Joint Action Committee for Women Reservation (JACWR). The Naga Mothers’ Association, Watsü Mungdang, Eastern Naga Women Organization, Naga Women Hoho of Dimapur and the Tenyimi Women Organization are some of the principal Naga women organizations comprising the JACWR.

[2] For example, on 27 August, 2007, four college students had abducted a woman from Showuba village near Dimapur and raped her. The four were arrested after a complaint was filed at a local police station. The Showuba Village Council court tried the youth and let them off after imposing a fine of Rs. 15 each (Banerjee 2016: 150).

OTHER REFERENCES

Banerjee, Paula. 2016. ‘Women, Conflict, and Governance in Nagaland’, in Ranabir Samaddar (ed.), Government of Peace: Social Governance, Security and the Problematic of Space. London and New York: Routledge

Economic and Political Weekly. 2017. ‘Naga Women Fight Back’, Editorial, 52 (3), January 21

Kashyap, Samudra Gupta. 2017. ‘Opposed to 33% reservation for women, Naga bodies call for boycott of civic polls’, The Indian Express, Guwahati, January 5, 2017

Nagaland News, ‘SC directs Nagaland Govt. to respond on 33% women quota’, November 20, 2012

Nagaland Post. 2012. ‘Assembly stands by Art.371(A); rejects women reservation’, Kohima, September 23

The Morung Express. 2017. ‘The Aftermath: Nagaland still on edge’, Dimapur, February 1

Thenortheasttoday (TNT), ‘Women’s reservation in Nagaland, will the government stand up to its commitment?’ (Undated article)

Woch, Khinyi. 2016. ‘In support of implementation of 33% women reservation in Nagaland municipal elections 2016’, The Morung Express, September 6

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Raiot

Saqib Khan Written by:

PhD student, Tata Institute of Social Sciences, Mumbai

3 Comments

  1. Dr anurag deep
    February 4, 2017
    Reply

    My friemd shishir in NEHU. shared ur article. in one group. Good one, kerp it ip. My comments follows
    1. The conflict between constitutional provision seems more imaginary than real. It is probably one reason why courts, govt and legr ve no strong objections to reservation of 33%.
    2. Selective picking of Customary laws ve always been a fashionable but poor defence in the march of development, reforms.
    3. Love for status qua is mostly bcz of apprehension of more shareholders in the cake. Some time it is bcz of ignorance also
    4. It is pleasant to know the status of women in nagaland is far better than other country. In that case the govt or legislature may begin with 20%reservation.
    Two clarifications are necessary, i. The govt passed 2016 bill is correct or a misprint, is it legislature or is it not bill but some subordinate legislation. ii. Footnote 2 indicates a gang rape resolved by some council, do they ve any such power, im sure the case must ve gone to courts also.
    Shishir,pl suggest or any other learned member can help.? Thanks in advance

  2. Chumben
    February 6, 2017
    Reply

    The writer wrote a very lengthy article with a vague idea about the issue and sentiments of the naga people, the reference and sources given cannot be taken as the gospel truth, I rather see them as a news because they had to fill the pages.
    If I have to question the writer, the reservation policy is still a controversial topic even in many states of India. Before talking about nagaland I advise you to do your homework on what reservation topic has done since 1996. I cannot make a law based on my tradation and force on you neither can you do that because it won’t fit you or me.
    We don’t let our woman cover from head to toe, the doors of our churches are opened 24*7 for the ladies, we rejoice the birth of a baby girl, we do not pay dowry… Do a research and add… We are different on every aspects.
    Nagas are not against women, you will never understand the protective quality and the sentiments which cannot be explained neither you will feel because you are not a naga and you don’t have emotional attachments.
    ULB election in Nagaland is complicated and has more than one valid reason, the municipal act itself is not fair it doesn’t benefit all the women who wants a share. The present format of reservation is like handpicking a particular person which doesn’t serve the purpose of having the reservation itself.
    You cannot say naga women can’t participate because every naga male or female are free to get elected in a free and fair manner, the only problem is the zeal and the commitment to contest and get elected is yet to ignite.

  3. Forwardman Nongrem
    February 8, 2017
    Reply

    By saying Political Equality , it doesn’t mean that women should be provided Reservation in politics but to be elected, depending on the capacity of both men and women…….
    Customary Laws of the Indigenous peoples should be respected by everyone…..
    We do need Social , Political and economic equality but not to compromise with the long persistent customary practices and not to make Men inferior to Women….
    Treat Equally and not to politicize the genuine issue……..

    I wish each and every woman of our country to perform well be it in politics or elsewhere, depending on their capacity……that’s is EQUALITY

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