In Meghalaya’s lush green Garo hills, home to the eponymous tribe, it is almost always raining.

For years, the largely rural region has been struggling with underdevelopment and underemployment. This, along with an insurgency movement seeking statehood for the entire Garo hills area which is divided into five districts – East, West, North, South and South West Garo Hills – ensures that the region is perennially stormy.

For the last week and a half, however, its residents have been grappling with a new concern.

On March 29, the Garo Hills Autonomous District Council, which administers the region under the sixth schedule of the Indian Constitution, passed the Garo Customary Law Bill, 2009. The sixth schedule provides for decentralised self-governance and dispute resolution through local customary laws in parts of the North East. It allows village and district council courts to adjudicate most cases involving two tribal parties on the basis of local customary laws. Only the High Court and the Supreme Court have jurisdiction over suits and cases decided by these village and district council courts.

The Bill codifies Garo customary laws into one Act that can be uniformly implemented across various clans and villages.

Identity debate

At the heart of the row over the Bill is how it defines a Garo. According to the legislation, only a person born out of a legal marriage between a man and woman belonging to the Garo tribe will be considered a Garo. The offspring of mixed couples – defined as the union of a non-Garo man and a Garo woman, or a Garo man and a non-Garo woman – would not qualify as Garos, even if the child took the family name of the parent belonging to the tribe.

Detractors of the Bill call this undemocratic and xenophobic, while its supporters claim the codification would make the interpretation of customary laws easier and help preserve Garo identity.

“How can the council declare us non-Garo when we have been accepted by the clan as Garos?” asked Somu Ingty, who belongs to Assam’s Karbi tribe and is married to a Garo woman. “The whole idea of pure-breed Garo is outdated and highly discriminatory. The world, as we know, is an amalgamation of different cultures.”

The definition of Garo in the Bill will only be applicable to children born after the passage of the act and will not be applied retrospectively.

‘Will hurt Garo women’

While most of the debate around the Bill has been restricted to the identity clause, the Garo Mothers’ Union, which represents women from the West Garo Hills, said that is just one of several problems with the legislation.

“Whom the Bill will hurt the most is the Garo woman,” said Sume Chandola Sangma, the secretary of the Garo Mothers’ Union. “There are many discriminatory legislative provisions, especially relating to women’s security and exercise of their fundamental rights.”

The Bill prescribes a fine of Rs 3,330 for a man found guilty of attempt to rape. “Such a provision is very troubling and it will allow the culture of impunity to prevail,” said Sangma. “This is clearly against the country’s rape legislations, but nothing in the Bill specifies that the statutory provisions will prevail where conflicts arise between statutory legal provisions and customary law.”

Sangma also pointed to a clause that states a man would have no responsibility towards a child born out of wedlock and called it outdated. These beliefs, she said, “have no place in the modern world”.

“In our society, when a woman dies, her younger sister is forced to marry the former’s husband,” she added. “It completely undermines the agency of the woman concerned, but even that [practice] has been codified into a law now.”

Sangma said the lack of female representation in the district council was reflected in the discriminatory nature of the legislation. In the 29-member council (of which 18 members were present when the Bill was passed) only two are women, she said.

According to Sangma, the very exercise of codification was questionable, given the fluidity of customary laws. “It appears that while codifying the laws the council has failed to understand that custom and tradition are always evolving,” she said. “At times, old customs are phased out due to the impact of modernity and a change in lifestyle.”

The Garo Customary Law Bill now needs to be approved by the governor. The Garo Mothers’ Union, Sangma said, has filed a petition requesting the governor not to give his assent to the Bill, which is the last stage before its enactment. “It should have been kept in mind that traditions are viable, living doctrines that grow with the community and time.”

Photo credit: Vishma Thapa/Wikimedia images [Licensed under CC by 3.0].

Matrilineal society?

Social scientist Walter Fernandes echoed Sangma’s views and said that “in principle” he was not in favour of codification of customary laws as it tended to make them stagnate. “As long the customary law remains a law that changes according to the changing situation, it remains a living law,” said Fernandes, senior fellow at the North Eastern Social Research Council in Guwahati.

Fernandes said that though Garo society was, on paper, one of the few matrilineal societies in the world, where women inherited land, decisions about the land were taken by men. Such unequal relations will be legalised following the codification, cautioned Fernandes.

The influx of the ‘non-Garo’

The Garo Students’ Union’s Chief Executive Committee president, Tengsak G Momin, however, defended the Bill and the codification. Momin said that tribal land was being indirectly transferred to non-Garos through marriage, a trend that the Bill sought to correct.

“Although on paper Garo women inherit land, it is often controlled by their non-Garo husbands,” said Momin, over the phone from Tura, a town in the West Garo Hills district. “Not only that, there have been many cases of non-tribals marrying Garo girls for business [commercial interests] and then leaving them stranded.”

Momin said the Garo Students’ Union supported the right of women to be treated as equals but had “apprehensions of the possibility of Garo women [married to non-Garos] contesting elections and winning, and the non-tribal husbands interfering in tribal affairs”.

The Bill will also serve as a “strong tool” to counter the “silent invasion of the illegal Bangladeshi Muslim immigrants” in the Garo hills, said Momin. Meghalaya shares a border with Bangladesh and rising migration from the neighbouring country has been a concern in the Northeastern state.