Politics of Women Reservation in Nagaland: Between Customary Law and Constitutional Provision

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By Dr. Kamei Aphun

Election to the urban local bodies in Nagaland, including the Kohima Municipal Council, scheduled for February 1st, 2017 has seen many collisions with State and the peoples’ organizations, particularly with the tribal hohos. This requires a very careful analysis. The bone of contention lies between Naga customary laws and the Indian Constitutional provisions which many argued are infringing to the former. Interestingly both customary laws and constitutional provisions are meant to work for the welfare of the people and this reservation definitely is aimed at empowering the much needed women of the State where there is not a single political representation in the present State Assembly from the category. Therefore, it is pertinent to understand Naga customary laws and practices and in which way Constitutional provisions can/may hamper the Nagaland State which enjoys special status in the form of article 371 (A) granted by the Constitution of India. Following are the points that may be considered:

1. Nagas have the rights and authority to decide their own laws as per customs and traditions which is safeguarded by Article 371 (A) of the Indian Constitution which says, “Notwithstanding anything in this Constitution, (a) no Act of Parliament in respect of (1) religious or social practices of Nagas, (2) Naga customary law and procedure,(3) and administration of civil and criminal justice involving decisions according to Naga customary law,(4) 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.”

2. This means that any law(s) passed by the Parliament of India or directive(s) given by the Supreme Court of India is not binding to the State and there lies the bone of contention on the current upcoming election where various organizations, tribal hohos tribal bodies in the state including the Naga Hoho have called for a boycott to oppose 33 per cent reservation for women arguing that reservation (for women) would infringe on Naga customary laws and tradition as protected under Article 371(A) of the Constitution of India.

3. It can be noted that the election to the urban local bodies including the Kohima Municipal Council has not been held since Article 243(T) of the Constitution came into force in 1993, with constant opposition and threat from the Naga Hoho and other tribal bodies. The Hoho and other bodies have recalled a resolution of the Nagaland State Assembly of September 22, 2012, which too had opposed reservation for women in civic bodies. It argued that the Nagaland Municipality Act (NMA) of 2001 is a copycat from other States which cannot be replicated by the Naga society.

4. In this regard, a Joint Coordination Committee (JCC) – a conglomerate of Naga tribal Organisations was formed to oppose the women’s reservation for being against ‘local culture and traditions’ and has been imposing bandths in the State districts to disrupt the proposed elections by the State Government.

5. The present State Government under T.R. Zeliang however has reiterated that 33 per cent reservation for women did not amount to infringing upon Naga customary law and tradition, because the very concept of urban bodies is new and were never a part of the customary practices of the Nagas. He said, “Towns and municipalities are new concepts and have nothing to do with tradition and customary practices of the Nagas”. The decision is taken long back during a Cabinet meeting in August 2000 and enjoys peoples’ support today, he augmented.

5. On the other hand, the Naga Mothers’ Association (NMA), which has been spearheading the movement for granting reservation to women argued that 33% reservation for women in Urban Local Bodies elections “only aims to translate to full fruition the very idea of gender equity under the Naga Customary Law. The Constitution of India does not infringe upon the social practices of the Nagas,” it said.

6. Furthermore, it can be argued that the reservation issue of women in local bodies in the State of Nagaland is a  direct confrontation between articles 243 (D) which gives 33% reservation for women and 371A which gives special status to the Nagaland State based on distinct political and cultural structure. It must be noted that article 243 (M) of Part IX of the Constitution gives exception to the reservation policy which is spelt out under article 243 (D). Accordingly, reservation will not apply to many North Eastern States such as Meghalaya, Mizoram, Nagaland and Hill Areas of Manipur. However, the decision of giving reservation to empower women by the present State government is otherwise faced with strong oppositions, on the grounds of infringing Naga customary laws and practices.

8. Having known both sides of the story, and realizing a need for correct interpretation, it is therefore proposed to observe the following points. That:

(i) It is tantamount to protect and preserve Article 371 (A).

If Nagaland State continues to follow any Act of Parliament or any judgment of the Supreme Court in Toto, then, it is setting a negative precedent which is neither beneficial nor constructive for the future of Nagas. Such precedent may be misquoted (in the near future) to give different meaning and in the long run, the State may even lose its special status of Article 371A granted by the Constitution of India.

(ii) It is only because Nagas have distinctive customary laws and practices that GOI has granted this special protection in the form of Article 371(A) in the Constitution to preserve and promote the rich culture and traditions of the Nagas. Otherwise, India will continue to pressurize to follow “one country, one law” system which will be detrimental for the Nagas in the long run.

(iii) Therefore it is proposed that the Nagaland Municipality Act of 2001 (which is amended in 2006) may be further modified or amended to suit the cultural and customary practices of the Naga people. And, for that, the Government of Nagaland should constitute a committee to discuss and dialogue with various tribe hohos and various organizations (including Churches) of the tribe. In this way, this rich traditional institutions and organizations of the Nagas can be kept alive democratically.

(iv) Meanwhile, more efforts should be initiated by the State Government to include more women in the political institution/s though they had already provided 25 per cent for women quota in the Village Development Boards. This is in conjunction with the Christian principle of “all men and women are equal”. Therefore, giving women reservation is a big step towards achieving that goal.

(v) However, the crux of the issue is to defend its aged old customs and practices and at the same time reciprocating to the changes that are fast occurring. For, no society is static and no customary laws and cultural practices are permanent.  Therefore, Nagas should codify its rich customs, oral history, faiths and cultural practices (by Naga CSOs, Academics, Church leaders etc.) so that it can counter balance the Constitutional provisions of India which comes with attractive packages.

The Author teaches Sociology at the Delhi School of Economics, Delhi University.

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