Why the Second(?) Amendment to 1997 Khasi Social Custom of Lineage Act is Untenable in Law

Text of the letter which organisations subitted to Shri Ganga Prasad, Honourable governor of Meghalaya regarding the proposed Second Amendment to THE KHASI HILLS AUTONOMOUS DISTRICT (KHASI SOCIAL CUSTOM OF LINEAGE) ACT 1997

Proposed Amendment

Dated: 30th July 2018

To,
Shri. Ganga Prasad
Honourable Governor
Meghalaya

Subject: Objections to the proposed Khasi Hills Autonomous District (Khasi Social Custom of Lineage)(Second Amendment) Bill, 2018

Honourable Sir,

We the undersigned would like to put on record our strong objections to the proposed Khasi Hills Autonomous District (Khasi Social Custom of Lineage)(Second Amendment) Bill, 2018 that was passed by the Khasi Hills Autonomous District Council on July 2018 and that is awaiting your assent.

First and foremost, the proposed amendment was never put in the public domain to solicit views and opinions from across Khasi society which as per the definition in the principal act includes “Khasi, Jaintia, Pnar, Synteng, War , Bhoi or Lyngngam or who is recognised or deemed as such under prevailing Khasi custom or this act” and who will be directly affected by this bill. Furthermore, due legislative processes were not duly followed.

The Khasis are a Matrilineal Society, meaning descent and lineage is traced from the mother and where there is ancestral property to inherit, the Khatduh or youngest daughter is a custodian of that property. Customary law of the Khasi that has time and again been settled through various court judgements clearly state that we are a Matrilineal Society and that Matriliny is the central organising principle. This amendment is a clear affront to this time tested socio-cultural practice and will wipe out the Khasi as a tribe. In fact, the stated intent of the principal act is “to make provisions for the protection of the Khasi social custom of lineage” and that social custom of lineage is Matriliny. The principle act also formalises the practice of “ Tang Jait” where a non Khasi woman marrying a Khasi man is able to pass on the lineage by way of the newly created clan. This clearly points to the need for protecting matriliny as it is the defining feature and structure of the Khasis.

In addition, the amendment seeks to recast the Khasi Matrilineal practise by seeking to strip a Khasi Women and her children of their Khasi and Scheduled Tribe Status for marrying a Non Khasi male. This amendment is bad in law because it violates the Article 14, 19, 21 of the Constitution of India which embodies the right to equality and to freedom of choice and expression. Many of these questions have in fact been settled in the Supreme Court through various rulings including the recent Hadiya case. This proposed amendment also conflicts with the Constitution Scheduled Tribe Order 1950.

The Proposed amendment clearly seeks to excommunicate and ostracise a Khasi woman who marries a non Khasi and her children, in contravention to our customary practices, Human Rights law and our Constitution.

The bill is being justified on grounds of protecting the Khasis against economic exploitation and land alienation, but this was done without proper and diligent research and the proposed amendment will not in any way resolve what is sought to be projected as being the crisis in Khasi society. In fact legislations such as the land Transfer Act and The Benami Act already exist to protect and curb economic exploitation and land alienation. These need to be strictly implemented in letter and spirit. Further there is an urgent need to bring a Land Ceiling Act such that rampant land alienation leading to landlessness especially rural landlessness is immediately checked.

Given the serious nature of the lapses and violations to the many constitutional provisions and our customary practises we sincerely urge you to withhold assent to this problematic amendment bill.

We trust that you will use your office to protect not just the women and children of Khasi Society but indeed the Khasi matrilineal tribe as we know it.

Thanking You.

Sincerely,

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