By Kitdor H. Blah
The question of the relationship between the KHADC and women’s constitutional rights has been raised in the article, ‘KHADC: Why trample on women’s constitutional rights?’ by Patricia Mukhim. The institution in question, the KHADC, is the legislative body when it comes to protecting Khasi culture and tradition, including marriage and Khasi status. In this regard, the Khasi Social Custom of Lineage Act, 1997, is the legislation that has protected and codified the matrilineal system, which is the pride of our women folk.
In my view, to say that the KHADC is trampling on women’s rights when it raises the question of mixed marriages between Khasi women and non-tribals, is a myopic statement. Does anyone believe that the KHADC is anti-women, or has a history of being anti-women, or is driven by any beliefs that are anti-women? The answer should be a resounding “No.” Rather, we should understand the perceived danger from mixed marriages owing to the matrilineal nature of our community. Why this is so is a subject of another article, but perhaps, it has to do with the dilution of the traditional matrilineal system itself due to the disappearance of the Kni-ship; due to the emergence of private ownership of land, and due to the growing exposure to, and presence of, other communities amongst us.
Moreover, the KHADC, vide the Khasi Social Custom of Lineage Act, 1997, has actually restricted certain fundamental rights of men. In clause 10(c) of the Act, children born to a Khasi father or both Khasi parents, will be deprived of their Khasi status if they are no longer governed by the matrilineal system. Thus, the Act has not only codified the matrilineal system, but even adds an arbitrary clause that seeks to deprive Khasi status to children of a Khasi man if they take his clan name. However, the Allahabad High Court has ruled that to keep one’s name of choice or change one’s name is a Fundamental Right covered by Articles 19(1)(a) and 21, i.e. Right to Freedom of Expression and Right to Personal Liberty.
So, the question is, would it tantamount to trampling on women’s constitutional rights for the KHADC to mitigate any perceived dangers from mixed marriages? The answer would be no, to the extent that depriving Khasi children, who take their father’s clan name, of Khasi status, does not amount to trampling on their constitutional rights. The answer would be yes, to the extent that depriving Khasi children, who take their father’s name but hold the Khasi status, amounts to trampling on their constitutional rights. If no, then accusing the KHADC of trampling on women’s rights is redundant. If yes, then clause 10(c) of the Act must be unconstitutional for violating Articles 19(1)(a) and 21, and hence must be subjected to invalidation or amendments. But if the Act is invalidated or amended, then so does the codification of matrilineal system. If the Act or the said clause is invalidated, then matriliny would not have the force of law, but would remain as a mere customary practice, having no bearing on anyone. In this case, following a matrilineal or patrilineal system would be irrelevant to our identity as a Jaitbynriew. But that is the crux of the issue. What Mukhim is saying, in effect, is that mixed marriages should not affect the Khasi identity of the children. But as argued above, if that is so, then neither should matriliny or patriliny have any bearing on the Khasi identity of children.
I would argue that barring any woman from marrying outside the community is in violation of her Fundamental Rights, just as barring any man and his children from keeping a name of their choice is in violation of their Fundamental Rights. But the issue here is not about barring women to marry whom they want or men to take a name of their choice. Qualifying the Khasi status of a person is a different issue than restricting the life choices of that person. The question then, is whether or not the KHADC can qualify the Khasi status of children by their name or descent. If we look at the Fundamental Rights enshrined in Articles 15(1)(2), 16, 19(1)(d)(e)(g), 29(2), they are subject to qualifications at 15(4)(5), 16(4A), 19(5). So, even certain Fundamental Rights are qualified by the protection of the interests of Scheduled Tribes. So, it would not be unconstitutional for the KHADC to exercise its legislative powers provided in the Sixth Schedule, to make laws aimed at protecting the Khasi community, even if it seems to touch on the Fundamental Rights mentioned above.
But as per the Allahabad High Court, the right to keep one’s name of choice or to change it, is contained in Articles 19(1)(a) and 21, which are not subject to any such qualifications. Therefore, clause 10(c) of the Lineage Act, qualifying Khasi identity by matrilineal nomenclature, is in violation of Articles 19(1)(a) and 21, without qualifications. Arguably, the right to marry a person of choice also falls under Article 21. So, if we follow this train of thought, then the KHADC may not be able to qualify Khasi identity by either name or descent. However, despite the above mentioned articles and their qualifications, or lack thereof, we nonetheless have Article 46 as a Directive Principle of State Policy, which states that the State shall promote the educational and economic interests of the Scheduled Tribes, and protect them from all forms of social injustice and exploitation. So, it is here, perhaps, that the constitutionality of the KHADC mitigating any perceived dangers from mixed marriages is affirmed, because the perceived danger of mixed marriages is none other than economic exploitation by non-tribals. Whether that mitigation will take the form of depriving Khasi status, or any other method, is a matter of state policy.
However, the above mentioned article also touched on the sorry affairs of abandoned single mothers. But when we talk of abandonment of single mothers, we are talking of morality, not tradition and culture. If we look at the KHADC and its various laws and history, it has indeed done its part to protect the traditions and culture of the Khasi community. But the KHADC has also done its part in protecting the state of women, such as the above mentioned Lineage Act, and the adaptation of the Indian Christian Marriages Act, 1872 in 1954 and of the Indian Divorce Act, 1869 in 1955. So, let us not conflate a moral issue with tradition.
But is everyone willing to look at this issue as a moral dilemma, instead of a cultural dilemma? Because once we look at it as a moral dilemma, it is something that bears upon us as individuals to take a personal account of, as opposed to culture and tradition which is something that is out there, external to us, and maybe in the past. Morality comes with a whole worldview and worldviews come with morality. While moral lapses can be addressed by legislature, such as the Compulsory Registration of Marriage, morality itself must also be addressed within the whole worldview, and the ethics imbedded therein. If the abandonment of wives is morally evil, then we must also look at our whole worldview. By what worldview must men be guided, in order to be more morally responsible? Is it by feminism, moral relativism, hedonism, etc.? Or is the act of supporting one’s spouse totally divorced (no pun intended) from the worldview of the society?
The historic matrilineal worldview placed little emphasis on the young husband’s role. He had no authority over his parents’ household as he was not the heir or custodian, and he has no authority over his wife’s household as most often, the man stays in his wife’s and in law’s estate. This is the worldview and the social structure in which his identity and obligations as a husband were defined. Moreover, the present matrilineal system is a diluted one, where the Kni-ship is non-existent, and land is no longer a clan holding, but private property. This, and the historic position of the husband, may have contributed to situations where the young husbands lack the moral resolution to look after their spouses (of course, this is not a generalization of all men). However, this in no way absolves them of their moral obligation, and it is hereby evident that moral obligation is an ‘ought’ that transcends tradition or culture. But, again, it is more problematic to look at this problem from the perspective of worldview and morality, because that forces us to make a deeper introspection, both into our culture and our own lifestyles. If morality comes with a worldview, then is that worldview conducive to the highest desirable moral responsibility? Is the historic matrilineal system, and now diluted, conducive to inspire the highest moral responsibility in young husbands?
The moral sense transcends culture. But like all of our senses, it can be sharpened or dulled by culture. Does our culture dull the moral sense in young husbands, who never had the opportunity to imbibe the sense of masculine responsibility and ownership at home, and will not have to opportunity to do so, at his in laws’? Another pressing concern is the disastrous effects of modern values like sexual liberation on marriages. This has been evident in the West, and should serve as an example to us. But are we willing to look at these issues, from the imposing perspectives of worldviews and morality?