• Abstract and Figures
• Public Full-text

CHAPTER-1 TRIBAL CUSTOMARY LAW AND WOMENS STATUS : AN INTRODUCTION Among the changes that modernisation has introduced among the tribes is the legal system. Studies indicate that it has had both positive and negative impacts on them. It has resulted in a new identity search among most tribes of the Northeast because of a feeling that modern institutions devalue their culture. This search is expressed, more than elsewhere, in the demand for the recognition of their customary law. Home to various ethnic groups and tribes, this region has witnessed many armed conflicts. Economic shortages are not their only reason. A major cause is what the people perceive as an effort to impose another culture on them. Going back to their tradition is a way of asserting their identity. Thus the tradition-modernity interface is a crucial component both in their identity re-assertion and conflicts. It has implications both from a gender and a class perspective and is the basis of this study. 1. THE BACKGROUND OF THE STUDY The present study on the impact of the customary law on Women has emerged from our past work on Modernisation and Changing Womens Status in the Northeast (Fernandes and Barbora 2002a) and Social Change in the Northeast (DSouza and Kekrieseno 2002). They had indicated that modernisation of the tribal societies without measures to counter its ill effects can result in class formation and strengthen patriarchy. It does not mean that modernisation is negative in itself but only that it has many negative effects that have to be countered. The present study will test this hypothesis and suggest measures if necessary to counter the ill effects of modern inputs if some of them go against gender equilty. The Importance of the Theme The theme is basic to the region in which many communities re-assert their identity through their customary law. Most tribal traditions were community-based and assigned a relatively high status to women without making them equal to men. On the other side, modern land laws are individual-based and ownership is by and large by men. Our own studies indicate that its result is class formation and a stronger patriarchal ethos (Fernandes and Pereira 2005: 27-29). On one side, most tribes consider their customary law intrinsic to their identity. On the other, while going back to it many of them give it a fundamentalist interpretation, especially on the gender issue and re- interpret it from a male perspective alone. Thus the tradition-modernity interface can go against women and often it does. 1 That is the starting point of our study in which we try to find out the impact on women of the tradition-modernity interface and of the trend to go back to the customary law. We shall do it through a study of five tribes that are at different stages of this interface. The Dimasa and Garo come under the Sixth Schedule that recognises community ownership (CPRs) but have to interact with the individual based formal laws. The Aka who are close to their tradition are governed by their customary law but the Sixth Schedule does not apply to them. Article 371A of the Constitution recognises the Angami customary law but there are indications that because of their interface with modernity men interpret it in their own favour (Kikon 2002: 176). The Adibasi whose ancestors came from Jharkhand and Chattisgarh as indentured labour to work in the tea gardens of Assam, have even lost their customary law. The Mongoloid tribes have only now started feeling an identity crisis in their move towards modernisation but the Adibasi have felt its worst effects for over a century because of land alienation that forced them to migrate to Assam. Their identity continues to be under attack. In the present study we make an effort to understand this variety, the changes that have occurred among them and the evolution of their customary law in response to them. We shall situate their evolution in the context of their demographic, educational and occupational status, all of which have a gender dimension. For example, the sex ratio is an indicator of womens status, so is their educational and occupational pattern. In order to understand their role in their family and society, we shall pay special attention to childrens upbringing, health care, discipline and education. A look at womens role in agricultural and handicrafts production can give us an insight into the decision- making processes and womens role in the family economy. In all the components we shall look at both the present and the past. The gender component will be analysed also within the understanding that all the tribal as well as non-tribal societies, including matrilineal, are patriarchal. Most of them limit property inheritance to men and deny it to women. So we shall try to see how inheritance has changed in the tribal societies of the region. While dowry is prevalent in most caste societies, some North Eastern tribes practise bride price and others have neither bride price nor dowry. Divorce too is not uncommon among them. While there are ethical questions linked to it, divorce as well as the absence of dowry indicate a higher status of women. However, also the nature of inheritance and marital relations seems to have changed. A boon of modernisation is education. Its facilities are available in most of the Northeast but in many of their societies they are not as accessible to women as to men (Fernandes and Barbora 2002a: 88). Education is crucial for upward social mobility and for livelihood alternatives since the school imparts to a person skills required for work away from the village. We shall, therefore, try to see whether women are given equal opportunities to work in the formal employment sector. All these components have to be situated in the context of the customary laws that the tribes of the region consider intrinsic to their identity and part and parcel of their culture and tradition. Their societies did not have written laws but were bound by numerous unwritten usages that 2 prescribe rules of conduct to individuals and regulate human behaviour and day-to-day life. Vitso (2003: 2) holds that their origin lies in habits that grew into customs. When a whole community adopts a habit it becomes a custom. Imitation plays an important role in the transition from habits to laws that also symbolise the values of a society. Its members respect and adhere to them if they become integral to their heritage. By maintaining social order they became a stabilising force in their societies. Customary Law can thus be defined as a set of rules that attain the force of law in a society because they are observed continuously and uniformly for a long time. It is the totality of the customs of a tribe handed over from one generation to the next. Since they provide rules, enforcement procedures and punishment for violation, they are guardians of its values (Singh 1993: 17) and are intrinsic to their identity. We shall go deeper into the contents of some customary laws in chapter 2. Questions around the Gender Issue One has to analyse modernisation in the context of the relatively high status that most tribal women enjoyed in their tradition without being equal to men. The woman was in charge of the family but the man controlled society. Her status was based on the community ownership of their CPRs. As long as their land, forest and water sources were CPRs women, being in charge of the family economy had some say in their management (Menon 1995: 101). Modernisation should have built on it and taken them towards gender equity but the opposite seems to have resulted from their interface with the formal system. For example, the intervention of individual ownership based laws that turn land without an individual title into State property was the first step in transferring power from the community to a few men from their elite who took control of all decision-making and interpreted the customary law to their own benefit.. It had a negatice impact on the status that women had enjoyed till then. Class formation and stronger patriarchy are its results (Fernandes and Barbora 2002a: 103-105). Also the individual orientation of the administration and financial institutions can catalyse a transition to class formation and stronger patriarchy, for example by giving loans and subsidies for commercisal cropas only to individual landowning family heads interpreted as men. So CPR dependent tribes are forced to change over to pattas. For example, among the matrilineal Garo of Meghalaya, the State encouraged rubber plantation and gave subsidies and loans to individual owners, thus forcing them to get pattas. The administration treated men as family heads and consulted them alone in decisions concerning land use and transfer. Today women continue to inherit land but men wield more political and social power than in the past (Marak 1997: 60-69). Their tradition was for men to represent the family in their society. Modern inputs maintained this tradition and granted them a role in the family. Our 2001 Angami sample gave us another instance of the States role in the process. Women were two thirds of the graduate and post-graduate degree holders among the family members but were only 22.16% of those holding salaried jobs (Fernandes and Barbora 2002a: 109). The male elite reinforced this process by interpreting in their own favour the customs such as the husband 3 being better educated than the wife. It has forced many educated Naga women to remain unmarried. Both the tribal customs that favour women and those that discriminate against them are based on the central pivot of women as homemakers and men as providers and protectors.

Load more

  224

Copy Link