By Laetitia Bruce Warjri | July 30, 2018
In a globalised world, the question of identity has become a fundamental one. Who we are, our place in the world, and what sets us apart from others is determined through the concept of ‘identity’. In the national arena, the question of who is ‘Hindu’ is occupying a major part of the space for discourse. For a community that makes up about 80% of our population, it is interesting to note that there is a sense of disquiet amongst certain members of the Hindu community. What happens then when we look at a community that is much smaller? What does living in a 21st-century reality mean for a tribe as small as the Khasis?
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The recent Bill to amend the Khasi Hill Autonomous District (Khasi Social Custom of Lineage) Act, 1997 has divided the Khasis into two camps: Those who are for it and those against it. It seeks to deprive a Khasi woman who marries a non-Khasi man of her Khasi status. Not only the woman loses Khasi status but the offspring of such a union will not be allowed to avail Khasi status either. This amendment, in one fell swoop, deprives the people falling under it of ST status (under the Sixth Schedule of the Constitution) and all the benefits, privileges, and protection that come with it.
This move is not sound in many respects: Legal, customary, and ideological. The first legal challenge to the amendment will come under Article 14 of the Constitution – the right to equality. The right to equality provides for equality amongst equals. It allows for a differentiation between groups of people provided there is a reasonable basis for doing so. For example, the distinction between a juvenile and an adult is on a universally accepted sociological and scientific basis. The reasoning behind the distinction is that those below the age of 18 do not have mental, emotional, and reasoning capabilities that are as developed as those older than 18. Therefore, expecting the same out of a juvenile as we would out of an adult would result in inequality. They are not equals.
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On what basis has the Khasi Hills Autonomous District Council (KHADC) differentiated between Khasi women who marry non-Khasis and Khasi men who do the same? Why have only Khasi women been made to lose their Khasi status should they marry outside the community? The Statement of Objects and Reasons only notes that this amendment is to “strengthen the Khasi social custom of lineage by way of codification.”
Irony just died as the reason the Khasis are celebrated outside their home state of Meghalaya is because of the community’s matrilineal structure. The Khasis trace lineage through the female line, children carry their mother’s surname, a woman is not expected to move out of the family home and move into her husband’s. In fact, Khasis are also matrilocal. It is the man who moves into the woman’s home (especially if he marries the Khatduh, the youngest daughter of the family).
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So the question arises, if lineage is traced through the woman, how can the child of a Khasi woman not be Khasi? For the entire history of the Khasis, it has been the woman’s name that has been passed down to the child making the offspring a part of the maternal clan.
In March this year, the Supreme Court ruled that the right to marry who we choose is a fundamental right that is protected by Article 21 of the Constitution (the right to life and personal liberty). Under what power can the KHADC decide who it is that a Khasi woman marries and what the consequences of such a union will be? That is akin to indirectly coercing women into marrying only those men deemed fit by the KHADC, which is a gross violation of both the rights to equality and personal liberty. Formed under the Sixth Schedule of the Constitution that provides for the setting up of Autonomous District Councils for protection of tribal rights in the states of Meghalaya, Assam, Tripura and Mizoram, the KHADC cannot decide who is “Khasi” and who is not. Its job is to promote and protect tribal interests not decide on the eugenics of Khasi identity.
A reading of the original act will give us a better understanding of how this amendment discriminates against Khasi women. The original act has provision for both Khasi men and women who marry non-Khasis. They themselves retain their Khasi status but the children are only given Khasi status if they fulfill the criteria in sub-clauses (i) to (v) of clause (b) of Section 3 of the original act, namely, if they can speak Khasi, they have observed the matrilineal system of the tribe, have not voluntarily renounced their Khasi status, have not adopted the customs of the non-Khasi spouse or parent, or have not been deprived of their Khasi status by a judgment or order or under any provision of the act. There is no distinction between Khasi men and women who marry outside the community. The same criteria applies to both.
In fact, the original act goes even further, and has a sub-section (under Section 2) that exclusively deals with non-Khasi women who marry Khasi men. As per custom that has been in practice by the Khasis, the non-Khasi woman can undergo a ceremony where she is given a ‘jait’, i.e., a clan name. She then becomes a Khasi with her clan name bearing the prefix ‘Dkhar’ or simply ‘Khar’, signifying that she was once a non-Khasi but is now part of the Khasi clan system with her own clan name.
This part of the original act has not been touched and will continue to function and be enforced as before. In practical terms, this means that Khasi men can continue to marry non-Khasi women without losing their Khasi status. The children born of such a union will also not lose their Khasi status. Why then have Khasi women been denied the same privilege, especially since the Khasi clan name is carried through her and not the man? Is it not logical to assume that according to the custom of matriliny, the child of a Khasi woman regardless of who the father is will automatically become a Khasi carrying the mother’s clan name? Why the emphasis on a patrilineal determination of identity when, by custom, the Khasis have a matrilineal system of determination of identity? This move by the KHADC reflects a troubling sense of male domination in a community that has been marked by an ability (in some important areas) to give the woman equal importance.
‘Khasi’ according to the original act is defined as ‘Khasi, Jaintia, Pnar, Synteng, War, Bhoi, and Lyngngam’. All these tribes are recognised by the original act as falling under the Khasi tribe. The trouble arises when a Khasi woman marries a non-Khasi man who is part of an ST community that is not Khasi like the Garos, the Mizos, the Bodos, etc. Does she lose her ST status but the child of such a union gains the ST status of his/her father? Each of these tribes have their own system of marking identity that may or may not be prejudiced against a woman from outside the community and her offspring. Things get even more complicated when the Khasi woman divorces her non-Khasi spouse. Does she get her Khasi status back? Or once married to a non-Khasi, you will be an outcast for life, according to the eyes of the law?
This amendment is not well thought out. It seems to be a knee jerk reaction by male chauvinists who believe that only women should be held accountable for the customs and traditions of the tribe. As is the case in patriarchal societies worldwide, it is the woman who is the vessel that carries symbols like honour, purity, and tradition. Men can do as they please and never have their honour and purity questioned. It is a sad state of affairs that a people that has prided itself on being “better” than others because it provides a semblance of respect for its women is falling into the trap of toxic masculinity that tries to control the choices and actions of its women.
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