Customary Law Must Bend to Basic Rights
Nagaland is convulsed over a contradiction of India’s Constitution by itself. Last year, the Supreme Court upheld an appeal by the powerful Naga Mothers’ Association (NMA), to allow 33% reservation for women in urban local body elections. The government of chief minister T R Zeliang wanted to conduct municipal polls on February 1, with such reservations. Various tribal organisations immediately swung into action.
They cited Article 371(A) of the Constitution, which says, “No Act of Parliament shall apply to Nagaland in relation to religious or social practices of the Nagas, Naga customary law and procedure, administration of civil and criminal justice involving decisions according to the Naga customary law, ownership and transfer of land and its resources.” This contradicts Article 243(D) that guarantees reservations for women. Opposition, including from the Naga Hoho, the apex council of tribal chiefs, led to cancellation of the polls. The chief minister might be evicted. Yes, our Constitution does allow tribes to observe customary law in many social and economic spheres, a recognition of the diversity of our population. Not all customary law — mostly codified in colonial India from oral representations — fits 21st-century India. Naga customary law has created a political society dominated entirely by men. Since its first elections in 1964, there has never been a single woman representative in its assembly. Its sole woman MP was the late Rano Shaiza, elected in1977. This glass ceiling is an anachronism in Nagaland, where the likes of NMA play a vital public role. Half the population cannot be kept out of democratic representation. The Hoho must amend customary law to end women’s subordination. Else, the constitutional guarantee of basic rights must prevail over customary law.