A violent agitation has broken out in Nagaland against a constitutionally mandated reservation for women in local councils. The tribal population of the state argues that this reservation infringes on their customary laws and beliefs and have called for an Ordinance from the centre excluding Nagaland from part IXA of the Constitution which creates Municipalities. This demand puts into conflict the special status given to Naga customs under Article 371A of the constitution and the Fundamental Rights (with specific reference to the right to equality). The Hindustan Times notes that the Naga people view Article 371A as a ‘badge of honour’ and that tribal groups have forced many to distance themselves from a four decade old women’s rights organisation, the Naga Mothers Association.
Even a textual reading of Article 13 and Article 371A brings this tension into sharp relief. Article 13 states that the Fundamental Rights would overrule any repugnant custom or usage in force in India. At the same time, Article 371A states that notwithstanding anything contained in the Constitution, any law in respect to Naga customary law needs to be approved by a resolution by the Legislative Assembly. It is therefore unclear as to what happens when a law (or in this case a Constitutional Amendment) in furtherance of the Fundamental Rights falls afoul of Naga customs. In addition, it is clear that the reservation for women is a provision which falls within the ambit of Article 15(3) of the constitution, as part of an effort to bring substantive equality for women.
But this conflict needs to be seen in perspective. The dispute pertains to municipalities which are a government entity created under a central law and not to a tribal form of governance. A comparable situation would be if the Naga custom had been to prevent girls from attending school. Protection of tribal customs cannot be taken to absurdity.
It is interesting to note that the reasons for the grant of autonomy to tribes under the sixth schedule of the Constitution are very different. In his speech on the need for the Sixth Schedule in the constitution (which grants autonomy to the tribal regions in the North-east), Rev. JJM Nichols-Roy said:
I would like very much if Parliament will appoint a committee to see these tribal areas. Perhaps they will see that in some places they are so far advanced that the whole of India must follow their example. In those areas there is no difference between man and woman : the woman does work, goes to the bazaars and does all kinds of trade. And she is free. In the plains the woman is just beginning to be free now, and is not free yet. But in some of the hills districts the woman is the head of the family; she holds the purse in her hand, and she goes to the fields along with the man…
Clearly, one of the reasons that the tribes are given such autonomy is not just to protect their culture but also to protect their progressive values from being destroyed. It is equally striking that the example used was the equality of women.
This view is corroborated by Ramachandra Guha in his book India after Gandhi. He states (on p. 265):
Known as ‘adivasis’ (original inhabitants), the central Indian tribals were somewhat different from that of the north-east. Like them, they were chiefly subsistence agriculturalists who depended heavily on the forests for sustenance. Like them, they had no caste system and were organised in clans; like them they manifested far less gender inequality than in supposedly more ‘advanced’ parts of the country. (emphasis added)
Of course, Article 371A was not an original part of the constitution. It was inserted by the 13th Amendment on the basis of an accord between Pandit Jawaharlal Nehru and the Naga people. But this accord cannot supercede the basic principles of the constitution.