Women Reservation versus Naga Customary Law: Dialectical Approach
Sira Kharay *
Nagaland for the first time is debating on the subject of Article 371A of the Constitution since the history of its formation on 1st December, 1963. The debate is crucial. Not because "33% women reservation" in the Urban Local Bodies (ULBs) transgresses Naga customary law, but because it evokes a serious constitutional question as to the sanctity of Naga customary law vis-a-vis inviolability of Article 371A.
The apprehension of the tribal hohos cannot be faulted as totally misplaced. Not because the concept of "urban municipal law" per se threatens Naga customary law for all purposes, but because Part IXA threatens to take away the partial right to internal self-determination protected under Article 371A. More so because Naga customary law and identity do not exist outside the special autonomy guaranteed under Article 371A.
However, the apropos issue has been bastardized as mere instance of "traditional men" resisting "women empowerment" on a slipshod analysis. Name-shaming of Nagaland continues. Whereas, the collective gender consciousness inherent in the Naga society which constantly invalidates the assumption that all is well with the status of women in the Naga society has been completely sidelined.
Politicking over the issue has resulted in deep social polarisation on institutional lines. Flip-flop mishandling of the situation thereafter by the State Government coupled with its incompetence led to the avoidable impasse. Thanks to the State Government for finally giving way to people's voice. Bordering on the absurd, however, NATC-JCC-ACAUT are now serving folk-martial diktats on the Government and Nagaland for all the wrong reasons continues to be in the headlines.
The stance of the tribal hohos unfortunately has been thus so divergent and rife with confusion. The constant inability to articulate the moot point of contention without reference to "33% women reservation" in particular makes the issue even more problematic. To make it worst, rhetoric often relapses into a banal form of "women-bashing" ending up in gender-shaming and intimidating of women. Naga Mothers Association (NMA) became a natural scapegoat. Consequently, a false dichotomy has been projected as though the narrative of women rights is in collision course with the practice of Naga customary law.
Ironically, some tribal women units have even withdrawn their membership from NMA. NMA has been thus pushed to a defensive corner for the fault of their own husbands. But this writer has not come across any valid argument for limiting the proposed affirmative action to ULBs alone. Call me a feminist if you like – NMA must carry the legitimate voice down to the grass-root village traditional authorities up till the State Legislative Assembly.
Reservation Not Dehors Article 371A
To label the fallout, however, as a case of gender contestation between men and women is to misread the whole issue. Naga Hoho has categorically declared that "no Naga man is against participation of womenfolk" and men are "open to any percentage, be it 33% or even more". NMA has equally made it clear that Naga women are not challenging the sanctity of Article 371A. In other words, in as much as Naga Hoho is interested in empowering women, NMA is equally interested in protecting Article 371A.
There is thus no actual conflict between Article 371A and Article 243T as misconceived. More so because to contend that "33% women reservation" infringes Naga customary law is to argue that "human rights" are antithetical to Naga customary law. Even assuming that Article 243T offends Naga customary law, "No custom or tradition, no cultural values or religious beliefs, can justify depriving a human being of his or her human rights" (United Nations).
Threat to Article 371A
Every incidence of municipal taxation or mode of ownership of property cannot also be denounced as inimical to Naga customary law. However, to contend that "urban municipal law" is altogether a different regime of law not relatable to custom is conceptually fallacious. "Urban municipal law" is not merely a "civic law" depart from social reality, but it constitutes a regime of local self-governance which necessarily originates from a social and cultural context. Therefore, Naga municipal law must also necessarily emanate from its local customary practice and not from the general Indian municipal code.
It is thus not Article 243T or the term "Nagaland Municipal Act" per se that actually threatens Article 371A, but Part IXA and the fact that Nagaland Municipal Act, 2001 originates from Part IXA and not from the plenary legislative power of the Nagaland Legislative Assembly under Article 371A. Hence, the present stalemate – Because the fate of Article 371A cannot also be compromised in the name of extending "33% women reservation" unless the same originates without reference to Part IXA.
Applicability of Part IXA
Problem, however, arises with the above construction in the event Part IXA is held to be applicable to the State of Nagaland. To draw a conclusion, it may be seen that Part IXA deals with "Municipalities" and Article 243ZC therein exempts the hill areas of Darjeeling Gorkha Hill Council and the Scheduled Areas and tribal areas under the Fifth Schedule and Sixth Schedule from the applicability of the Part.
Reference may also be made to the preceding Part IX which deals with "Panchayats". It must be seen that in the case of Part IX, Article 243M therein specifically exempts not only Nagaland, but also Meghalaya, Mizoram and the hill areas of Manipur from the applicability of the Part. From a comparative perusal of Part IX and Part IXA, it appears that Nagaland is not exempted from the applicability of Part IXA.
Part IXA Conflicts Article 371A
But municipal law being a regime of local self-governance, applicability of Part IXA to Nagaland is not in accordance with the spirit of Article 371A. Part IXA effectively takes away the customary law autonomy protected under Article 371A as local self-governance conceptually cannot exist outside customary law regime.
Even otherwise, Part IXA is in inherent conflict with Article 371A. Part IXA makes the members of the Panchayats a composite part of the structure of the Committee for District Planning and Committee for Metropolitan Planning as contemplated therein. However, applicability of Part IX being exempted, there is no Panchayat system in the State of Nagaland. Thus, the Committee for District Planning and Committee for Metropolitan Planning as contemplated under Part IXA are at odds with the State of Nagaland.
To resolve the conflict, however, the latin legal maxim "generalia specialibus non derogant" must be brought into full play and Part IXA being a general law and Article 371A a special law, the special law under Article 371A must be presumed to prevail over the general law under Part IXA. Accordingly, the safest political recourse for the State Government for now may be to invoke its plenary legislative power under Article 371A and to revisit and extricate the existing Nagaland Municipal Act, 2001 from Part IXA with a specific reservation clause for women without reference to Article 243T.
* Sira Kharay wrote this article for e-pao.net
The author is an Advocate based at New Delhi and can be reached at sirakharaypeh(AT)gmail(DOT)com
This article was posted on February 17, 2017.
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