I do not know whether the crisis in Nagaland is a reflection of petty political squabbles between power-hungry politicians or has its roots in more sinister designs to undermine the Naga political process. Elections to the 32 municipal and town councils have been stalled after the state government’s attempts to implement 33% reservation for women in the civil bodies met with widespread resistance by the Naga women led by the Naga Women’s Association, leading to violence, protests and deaths, which have paralysed administration in the state. The opposing tribal councils in Nagaland contend that enforcing women’s reservation is an infringement upon their customary laws and traditions.
This controversy has raised some very difficult legal and political issues that need to be understood in all their complexity.
To begin with, yes, Naga society is patriarchal. However, Nagas themselves often do not recognise this fact and there are several reasons for this.
In their eyes, the tribal society is more equal than the Hindu caste-based societies. While it is true that Naga society, except for a small section, is not based on caste, every aspect of it is dominated by man. The patriarchy in traditional Naga society is re-enforced by the patriarchy of the church. There is no aspect of the public or private domain that is not based on principles of patriarchy: domination of men over women, the old over the young.
However, in this, Nagas are no way unique. Almost all societies on earth today are based on patriarchy – only that this patriarchy manifests itself in cultural, social, political ways in each society differently. For instance, patriarchy is also entrenched in Hindu society and India as a whole has a reputation of being one of the most dangerous places for women.
Second, the rest of the country’s criticism of Naga society based on the ongoing turmoil smacks of majoritarianism. When members of the dominant group attack minorities for being “patriarchical” and “misogynist”, it results in the double oppression of women of these communities and it is seen as an attack on the minority community as a whole.
Third, the criticism of customary laws of indigenous people is also lopsided, as it implies that India’s enacted legislation are not patriarchal. The Indian Constitution as well as the Indian legal process is patriarchal, as is customary law.
Fourth, Nagas’ defence of customary laws and practices is also based on the false premise that these laws have been upheld since time immemorial, have been handed over to them, and thus cannot change, evolve and become more relevant to society. Why can’t Naga leaders decide to give women 50% seats in the municipal elections to show how truly democratic their society can be? Many of us who have defended the continued existence of customary law or tribal jurisprudence have simultaneously advocated for a mechanism for these practices to evolve. Without such a mechanism, customary laws and practices will be fossilised and irrelevant to the society.
Fifth, under international human rights law, indigenous peoples’ customs and practices must be respected, but they must also be in consonance with international human rights standards. International human rights law does not recognise patriarchy as such as a human rights violation, but it does recognise the right to gender justice and gender equality. However, often, women’s rights have been used as a weapon to defeat other rights – especially indigenous peoples’ right to self-determination. This has been seen in many countries including Canada, Australia and now in India.
In the process of advocating the right of Naga women to reservation in municipal elections, the Indian state will weaken the right of Naga people to self-determination which is enshrined in Article 371(A) of the Constitution. The Article states that the Indian parliament cannot make any laws without the permission of the Nagaland legislature with regard to:
- Religious and social practices of the Nagas
- Naga customary law and procedure
- Administration of civil and criminal justice involving decision according to Naga customary law
- Ownership and transfer of land and its resources.
Solutions and their problems
There are a few possible resolutions to the ongoing row in Nagaland, two of which are: the dilution of Article 371(A) or a recognition of Naga women’s right to equality in the public sphere.
The latter will give some women access to political power as well as the right to economic assets and social prestige, but will do little to undermine the institutionalised patriarchy in Naga society.
Moreover, the dilution of Article 371(A) could have several adverse effects. If the special provisions are no longer in place, Naga land and resources will no longer be protected and will be available for sale in global markets. Both Naga men and women stand to lose if large corporations move in to grab the land, minerals and forest resources of the people.
Another possible solution is that the State could accepting that the 33% reservation is a violation of Article 371(A). In this scenario, Naga women will continue to suffer under inequality and denied gender justice and the patriarchal basis of Naga society will be strengthened.
Finally, a fourth possibility is that women, especially those in position of power, will organise to demand justice and claim their right to take part in political processes. If this happens, the State and multinational corporations will likely use that opportunity to once again attack the special provisions for the Nagas in the Indian Constitution.
Some people have argued that since the municipal bodies are outside the ambit of the traditional Naga society they need not be governed by the peoples’ customary laws. That is a dangerous argument because by this logic, so are transnational corporations who are eyeing the rich natural resources of Nagaland and the rest of the Northeast.
None of these arguments are meant to justify patriarchy in Naga or in any other society. I believe the resolution of this controversy requires much deeper thought and political imagination.
First of all, Nagas – both men and women – need to understand what patriarchy is and how it is different from gender inequality. They also need to have open discussions on the feminist understanding of patriarchy. Feminism is an ideology that seeks to understand and change the patriarchal basis of society. Feminists believe this change will benefit men, women as well as children. There are many women who have internalised these patriarchal attitudes and there are increasing number of men who are committed to feminist ideology.
I believe the Naga nationalists leading the movement for self-determination too need to urgently understand this. Do they want the future Naga society to be based on inequality of men and women?
Further, there is a need to have a committed and creative body of Naga men and women who will dedicate themselves to evolving Naga jurisprudence so that it is in consonance with international human rights standards. In other words, they must expand the scope of Article 371(A) so it becomes meaningful for the Naga people today. This is a very challenging task, but I believe if it is done, Nagas will also have a solid basis for their demand for self-determination.
After all, Naga tribal groups as a cohesive unit emerged only during the colonial rule, they are not ancient institutions. Nagas have evolved and established new political institutions such as the Naga Hoho or the Naga Students Federation. Why not establish a body that will ensure that Naga women have their rightful place in society?
The Naga national movement must understand that the right to self-determination has to include the idea of gender justice, otherwise the dominant law and society will use women’s rights to undermine the movement for self-determination.
If they are able to evolve their customary laws and change them so that women get equal access to political power, Naga nationalists would have also evolved the legal foundation for the peace process; they would have laid the basis for the resolution of the conflict by evolving a truly democratic mechanism for law making.
If the Naga people do not do this and leave the matter for Centre and Indian courts to settle, they will lose even the limited right to self-determination. Those Naga women who think that the patriarchal Indian laws and courts can be their saviours need to read the history of how women’s rights have been used throughout history to undermine the right to self-determination of indigenous peoples.
Nandita Haksar is a human rights lawyer, teacher, activist and writer.