Why Nagaland erupted: Tradition vs modernity

The unseemly social unrest in Nagaland over 33 per cent reservation for women in urban local bodies again raises the question of to what extent customary laws can be pushed at the cost of their anachronism leading to dangerous social friction, undermining modern norms of justice and laws.

The Nagaland developments aren’t entirely dissimilar to the Jallikattu controversy. While the latter is a case of whether causing immense distress to animals in the name of culture and custom should be given legal sanction, in Nagaland the question is whether keeping women out of decision-making community bodies, just because it was the norm in an earlier era, can at all be justifiable.

This concern isn’t new, and it’s been a stumbling block towards codifying customary laws of indigenous peoples. For one, there are as many customary laws as there are indigenous tribal communities, and many neighbouring communities often advocate mutually antagonistic values, thus causing conflicts amongst them. For another, the question of compliance with the principle of peremptory norms, also sometimes referred to a jus cogen, has always been a big issue.

Peremptory norms refer to certain practices that are absolutely and unjustifiably wrong. This includes slavery, piracy, colonisation, racism, etc. The list can’t have boundaries: many previously overlooked situations/experiences of injustice peculiar to individual communities can and do come up; child marriage, sati, female genital mutilation, traditional practices resulting in gender inequality, to cite some examples. The Naga customary laws’ objection to what in modern society is a key initiative for women’s empowerment would arguably make this list.

The Nagaland controversy, that has already cost two lives and destruction of much public infrastructure, is a call to review adherence to customary laws and their supposed infallibility. This isn’t just in Nagaland, but covers most of the Northeast. in neighbouring Manipur, the 95-day-old ongoing blockade along two major highways that link the state to the rest of the country by the United Naga Council rests on a similar clash of vision between customary and modern laws.

The blockade began November 1 in anticipation of the Manipur government creating two new districts from what the UNC considers as part of the traditional Naga homeland. After nearly a month and a half of the blockade, the Manipur government decided to disregard the UNC’s objection and created seven districts by bifurcating seven existing districts, four of which the UNC considers to be part of their ancestral Naga homeland. The question here is: do administrative districts divide people? This is specially relevant given that Assembly and parliamentary constituencies have been left unaltered by new districts. The more important question is, can there be a reconciliation of the two visions? The answer is currently being explored in talks in New Delhi between UNC leaders, Manipur government representatives and the Centre, and on its outcome rests the future of the atrocious blockade.

Last week’s violence in Nagaland has its genesis in the Constitution’s 74th Amendment in 1993, which provides for 33 per cent reservations for women in urban local bodies nationwide. This wasn’t immediately adopted in Nagaland. In 2006, however, the Nagaland Assembly passed the Nagaland Municipal (First Amendment) Act, providing for 33 per cent reservations for women. The law, however, faced objections as it was felt it violated Article 371A, a clause in the Constitution introduced in 1963 when Nagaland state was formed, stating “no Act of Parliament in respect of... religious or social practices of Nagas, customary law and procedure, ownership and transfer of land and its resources... shall apply to the state of Nagaland unless the nagaland Legislative Assembly by a resolution so decides”. After this objection, polls to municipal bodies weren’t held.

In 2009, a powerful women’s organisation, Naga Mothers’ Association, took up the issue. At its initiative, a newly-formed Joint Action Committee for Women Reservation (JACWR) filed a writ petition before the Kohima bench of the Guwahati high court in 2011, challenging the state government’s refusal to hold municipal elections. The ruling went in its favour, and the court directed the Nagaland government to hold municipal elections before January 2012 with 33 per cent seats reserved for women. The legal entangle, however, didn’t end as the state government secured a stay on the grounds that the order violated Article 371A. In September 2012, under pressure from Naga tribal bodies, in particular the Naga Hoho, a Nagaland Assembly resolution overturned its earlier decision on reservations.

The JACWR, however, moved a special leave petition in the Supreme Court and finally got a ruling on April 20, 2016, wherein the Supreme Court upheld the high court’s October 2011 order. The state government, now under chief minister T.R. Zeliang, decided to support the cause of women’s reservation and passed the Nagaland Municipal (Third Amendment) Bill 2016, which revoked its September 2012 resolution. The state government also decided to conduct polls in 12 of 32 municipal bodies in the state on January 31, after another directive from the high court. The street violence followed thereafter.

It is rather surprising and ironic that Nagaland, and indeed most tribal communities of the Northeast, which are known for their liberal approach to gender equality and status, should have such structural gender oppression embedded within its customary norms. This being so, many in the state also feel that the present trouble is the fallout of sinister political instigation by those pitted against Mr Zeliang. Considering the latter’s bitter rival, former chief minister and now member of Parliament Neiphiu Rio, has come out strongly against Mr Zeliang and those advocating reservations for women, there may indeed be more to the present Nagaland trouble.