By Dalariti Nongpiur and
Philarisa Nongpiur
The last few days have been a rude awakening for a lot of Khasi women. Personally, it feels like someone is trying to rip out one of my legs while simultaneously presenting me with a new pair of crutches. I no longer suspect that we are a small and petty people. I now know for sure. We are incapable of evolving – stunted as we are in our cultural, political, social and personal growth – especially when it comes to our outlook on women.
With this recent amendment of the KHAD (Khasi Custom of Lineage) (Second Amendment), 2018, this matriliny that the rest of the world raves about as a utopian way of life has been unmasked. We are in a matrilineal system alright, but one that is being run by self-declared patriarchs and defenders of the people. To them the one thing we need to be to be defended against is ourselves apparently – especially the womenfolk. It’s like a freaking time warp. Where are we? When are we? Is this the 21st century? Did we take a wrong turn somewhere?
Identity is something that we have always struggled with as a race and the implementation of this bill aims to strip off a very important fabric of this identity from the bare backs of Khasi women. Their loss of identity will make them vulnerable to multiple/intersectional discrimination, both by virtue of being an ethnic minority and by virtue of being a woman in their own community. Those affected by the Bill will have no legal recourse either – as per section 19 of the Khasi Lineage Act, 1997which clearly barsCivil Courts from exercising jurisdiction to deal with a matter to be determined by the Executive Committee – resulting inthem being disempowered and unable to exert a choice.
Article 14 of the Constitution reads that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” FurthermoreArticle 15 (1) prohibits the state from discriminating against any citizen on ground of any religion, race, caste, sex, place of birth or any of them. However, by virtue of Article 15 (4)- the Amendment Bill can be seen as the state’s prerogative for taking certain special measures for the “advancement” of the Scheduled Tribe, leading to justify the intersectional discrimination of women which this new amendment undoubtedly seeks to implement. The question that now arises is whether Articles14 and 15 (1) can be overlooked to accommodate Article 15 (4)? And on further analysis of Article 15 (4) another question arises. What is legitimately covered by the term ‘advancement’? Is it the addition of a discriminatory clause as the proposed amendment to the act or the removal of traces of discrimination all together?
The people who framed theKHAD (Khasi Custom of Lineage) (Second Amendment), 2018 might be of the opinion that they are not restricting a Khasi woman’s choice to marry whom she chooses, but we all know that this is exactly what the amendment does thereby forcing and coercing us women to discriminate based on race. This is not advancement. This is not progress. How can anyone in this day and age support or frame a policy that disenfranchises any woman of her fundamental rights and threatens her with incarceration? And this is being done by turning a social custom (one that has always been in her favour) into a misogynistic tool with which to socially condition her into becoming a racist.
I remember being taught about these incredible concepts called freedom and rights and equality. People have died for them. We sing songs about them. And now this amendment shows up with the intention to curtail one of the most fundamental of our fundamental rights – our choice of whom to share our lives and procreate with. It’s political blackmail; it’s discriminatory; it’s regressive; it should be illegal. But here we are actually pulling each other’s hair and clawing each other over it.
So let’s go beyond the purview of this law and examine the constitutionality of the Bill itself. The KHADC in pursuance of its powers under Para 3 of the 6th schedule of the Constitution, can make laws pertaining to “social custom”, among others. However, for any such social custom to be legally enforceable, it must comprise of two essentials classified as- formative and operative essentials. The first essential includes:
- antiquity: The social custom is an age old practice.
- uniformity/continuity: The social customhas definitelybeen practised continuously and uniformly over a period of time with stability and no interruptions.
- Certainty: where there is clear evidence that the custom is in practice.
- conscious acceptance as of right: the custom is consciously accepted as a law by the community.
The second essential includes being reasonable and in accordance with morality, public policy and decency. The KHAD (Khasi Custom of Lineage) (Second Amendment), 2018 fails to validate itself in terms of both essentials.
Justice is blind they say and there are similar cases that have been adjudicated in the courts before-sparking backlash and calumny of orthodox groups. One such case is the Goolrukh Gupta case, which hits closer to home. In December 2017, the Supreme Court had to address the question on whether the rights of a Parsi woman married outside her community can be curtailed by the Parsi Anjuman for the purpose of maintaining its regressive religious practices – in this case, losing the right to perform the last rites of her father. The court ruled in favour of the petitioner, observing that a Parsi woman does not lose the right to enter Parsi temples or participate in other Parsi religious ritualsby virtue of her marrying outside her community- “DNA does not evaporate”, the Supreme Court had remarked in its judgment. There you go, “DNA does not evaporate.” That’s the legal system making a landmark judgement using science as the vernacular.
It a sad thing that there is no law against hypocrisy, but for a community whose sense of self preservation is so deluded, we have an insatiable appetite for self destruction. Most of us have adopted an alien religion and worship a foreign god; We have forsaken every aspect of our culture right from rituals, attire, music, dance and yet when a woman is concerned, we expect her to represent the community. I know the women can still wear the traditional attire, but how many men can ‘boh’ or ‘spong’ or is it because the burden of all traditional obligations fall only on the women? We point out the ills of other cultures, but fail to see our own faults – our racism and sexism and hate.
The KHAD (Khasi Custom of Lineage) (Second Amendment), 2018 encapsulates all of this and is fuelled by something we cannot seem to keep a check on – fear. And this fear has led us to a path that drags the socio-political evolution (not only of the Khasi people), but off humanity as a whole quite a number of rungs down on the evolutionary ladder. We’re right back at the point where and when women (all mothers and daughters and sisters and nieces)have to re-fight the battles that sought to make them equals in the eyes of the law and maybe someday to the predominant chauvinistic male gaze we have all grown up seeing through.
(Dalariti Nongpiur is an entrepreneur living in Shillong. She is the only daughter and stands to inherit the ancestral property she now lives on with her parents. She is married to a Khasi and has a five year old son. She wants no more children.)
(Legal contributions by Philarisa Nongpiur)