Issues in Indian Federalism and Minority Women: Consequences of Differentiated Asymmetric Arrangements

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Samir Sharma. (2014). ‘Issues in Indian Federalism and

Minority Women: Consequences of Differentiated Asymmetric

Arrangements’i in Kaustav Chakraborty

(ed).Deconstructing the Stereotype: Reconsidering Indian Culture, Literature 

and Cinema (Hamburg: Anchor Academic Publishing).

Introduction: Framework of the Paper

The paper will be divided into four sections. Section I will

lay not only the theoretical framework and the scope of the

paper in understanding the issues involved, but will also

identify the central problem. Section II will chart the

institutional and legal framework (protections) relating to

minorities. This, it will be argued, is the crux of

understanding the manner in which a differentiated notion of

citizenship is introduced into Indian federalism, thus making

it asymmetricii. It is my contention that it is here the

problem reveals itself. Section III will analyse the socio-

political and cultural consequences of such protection(s),

especially with regard to minority women and people that are

considered as 'outsiders' or 'migrants'. The notion of

'outsider' or 'migrant', it will be further argued, is crucial

to the understanding of what is referred to as the 'fixing of

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identities'. Section IV will present, by way of a conclusion,

an attempt to evaluate the working of these arrangements and

will broadly take issue with the emerging trends and

(re)definition of the notions of both Indian federalism and

the differentiated citizenship arrangements therein.

Section I: Scope and Objectives of the Paper

This paper identifies a central problem which unfolds, it will

be argued, when a ‘differentiated’ notion of citizenship is

sought to be practiced through the means of 'asymmetric'

federalism'. This is observed when on the one hand

contemporary literature on citizenship emphasizes the need to

transcend statist and formal-legal notions towards a more

'differentiated', 'transversal', 'contextualized',

'dialogical' and 'relational' approach, that takes cognizance

of citizenship as a 'lived experience'. While on the other

i I am thankful to Professor Balveer Arora and Professor Anupama Roy for

their encouragement. However, all errors are my own.

ii For an analysis on the manner of these arrangements in the Indian

Constitution see Rodrigues, Valerian.2005. 'Citizenship and the Indian

Constitution.' in Rajeev Bhargava and Helmut Reifeld (eds.), Civil Society,

Public Sphere and Citizenship: Dialogues and Perceptions. Sage Publications, New Delhi.

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hand, the writings on the notions and application of

(asymmetric) federalism, though devoting itself towards a

continuing attempt to recognize and manage 'contextualized'

differences (that arise out of various diversities), also

simultaneously retains the overarching framework which is

conceived mostly in terms of a 'national polity', which for

all practical purposes is sought to be represented by the

'state'.iii It is this problem, the paper will seek to show,

that gives rise to the various issues and debates related to

the rights of women in minority groups and migrants.

Articulations of groups and communities to be recognized,

due to the unfolding of the democratization process, have

raised many issues that pertain to questions of 'whom',

iiiFor an excellent analysis on issues in Indian federalism see Arora,

Balveer and Douglas V. Verney eds. (1995) and also Arora, Balveer and

Nirmal Mukharji eds. (1992). For the various debates and issues

regarding citizenship see Baruah, Sanjib (2005). Baruah, Sanjib ed.

(2009). Fernandes, Walter, Melville Pereira and Vizalenu Khatso (2005),

Hoffman, John (2004), Holston, James (2008), Jodhka, Surinder S. (2001)

Kymlicka, Will (1995), Lister, Ruth (2003) Majeed, Akhtar. ed. (2009),

Roy, Anupama (2005), Roy, Anupama. (2008,2010), Yuval-Davis and Werbner

(1999), and Samaddar, Ranabir. ed.(2005).

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'when' and to 'what degree' should 'recognition' be granted,

and also importantly, on what conditionalities. Among other

things, it is this conditional recognition of diversity that

informs the discussion in the paper. In view of the increased

mobility that is induced by the forces of modernization and

urbanization, it has also been noted that while it does lead

to an increased level of connectivity and interaction among

various hitherto isolated groups, these forces have also often

created situations of conflict and contestations in the polity

(Weiner 1978). Thus, it will be essential for us to bring the

two corpus of contemporary writings on citizenship and

federalism together through a 'historical' and an 'analytical-

conceptual' approach.

Section II : Federal Asymmetry and Differentiated Citizenship

in India

In contemporary times many democratic states are taking

cognizance of 'difference' and 'diversity' within their polity

and attempts are being made to formulate corresponding

policies to respond, manage and possibly resolve such

conflicts. Since the diversity in India with regard to

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language, religion, region and ethnicity is tremendous, the

framers of the Constitution argued, among other things, for an

asymmetric federal design as a means to 'accommodate' these

diversities. Special provisions for affirmative action, a

variety of personal and customary laws, the decision not to

impose a uniform civil code, constitutional protection of

cultural and educational rights of linguistic and religious

minorities, a secular notion of citizenship that was defined

by civic and (differentiated) universalistic criteria were

among the many provisions that indicated the recognition of

four important categories of diversity--- that of caste,

language, region and religion (Kumar 2005:94).

It is here that one can note a crucial omission, that of

gender. As Jaising (2004: 292) has pointed out that the

'constitutional discourse’ in the Constituent Assembly showed

the concern that the framers had for the issues of 'gender’.

The dilemmas and issues of the partition took centre-stage

which sought to provide protection for the emerging 'political

union' of India. Jaising notes the views of two members, R.A

Kaur and Mrs H. Mehta, who 'displayed incredible foresight' in

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bringing out the issues of women that would be crucial in the

'post-independent period'. These included the demand for a

rephrase of draft Article 19, which became Article 25 in the

present Indian Constitution, where the two members had wanted

a 'rephrase' so that any possible challenge to a reform law

that sought to address women (and their issues) would not be

deemed as an 'interference with the freedom of religion.'

Jaising also notes that the Constitution left to the courts to

'give life to the equality code’ while remaining silent on

how, given a certain situation was, the 'right to equality' be

applied (ibid: 294). When the question of 'conflict' between

'right to equality' and 'right to religion' came to the

forefront as far as 'personal laws' were concerned, the Bombay

High Court in State vs. Narasu Appa Mali (AIR 1952 Bom 84) and

Srinivasa Aiyar vs. Saraswati Ammal (AIR 1952 Bom 84) judgement

'immunized' personal laws from judicial review, even when they

would violate Fundamental Rights of women.iv

iv For more details see Jaising, Indira. 2004. 'Gender Justice and the

Supreme Court.' in B.N Kripal, et al. Supreme But Not Infallible: Essays in Honour

of the Supreme Court of India. (Paperback Edition.) Oxford University Press, New

Delhi.

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The Constitution also recognized the need for a separate

political and administrative structure, among other tribes,

for the hill tribal areas of the erstwhile areas of Assam and

the rest of India. This was done through the Sixth and the

Fifth Schedules. The Sixth Schedule was specifically meant for

the hill areas of Assam. However, there were also voices in

the Constituent Assembly that were against this kind of

conception of differentiated asymmetric arrangements. One of

the members, Babu Ramnarayan Singh, held that there should be

only one administration in 'every part of the country' and

that colonial constructs such as the 'backward tracts' and the

'partially excluded areas' should not be the vocabulary of the

emerging Indian state. But these areas persisted in the

Constitution of India as the Scheduled Areasv which were

exempted from the ordinary administrative structures of the

country. Singh (2007: 1-2), analyzing the Constituent Assembly

debates that took place on the 5th , 6th and 7th of September

1949, perceives three 'schools of thought' that could be

observed among the members. They are as follows,

a) those that were represented by members like Brajeshwar

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Prasad who proposed that the areas brought under the Sixth

Schedule of the Constitution should be administered directly

by the Centre.

b) those represented by members Kuladhar Chaliha and

Rohini Kumar Chaudhuri who were both from Assam. They

expressed doubts regarding the ability of the tribal people to

govern themselves and maintain peaceful relations with non-

tribal people. In their view assimilation of the tribals was

the best policy. They argued that the creation of the

autonomous district under the Sixth Schedule would amount to a

v The history of the Scheduled Areas goes back to the mid-1800s when the

British colonial administration designated certain areas as non-

regulated areas that were codified into the 1874 Scheduled Districts

Act. The name was changed to 'excluded areas' with some areas being

designated as 'partially excluded areas.' The North-West Frontier and

the North-East Frontier were among the prominent excluded areas in the

British administration. For a preliminary discussion see Baruah, Sanjib,

2009, 'Northwest by Northeast: A Tale of Two Frontiers'.

http://www.opendemocracy.net/article/email/northwest-by-northeast-a-

tale-of-two-frontiers Date of Access Feb 26th 2012 and also Bodhisattva

Kar, 2009. ‘When was the Postcolonial? A History of Policing Impossible

Lines.’ in Sanjib Baruah (ed.)

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‘weapon’ that would lead to a 'tribalistan' (like Pakistan)

and a 'communistan.'

c) those represented by Rev J.J.M Nichols Roy, Jaipal

Singh and Gopinath Bardoloi who were advocates of the tribal

cause. They explained that generosity was required on their

part as far as the tribal people were concerned. Jaipal Singh

argued that to view the tribal people of the hills as hostile

to the Indian Union was misguided, and that their culture and

the ways of life must not be abolished. It was in this

context, they said, that self-government was necessary and any

use of force (through the army or the Assam Rifles) would not

be conducive towards a solution of the issue.

Sonntag (1999) argues that the primary reasons for this

kind perception of distrust and unwillingness in granting

autonomy to the hill areas, especially articulated by the

'school of thought' that was represented by certain members of

the Assembly was 'security' and 'paternalism' on the part of

the erstwhile British colonial state. For the new Indian

state the loyalty of these areas was also in question, as was

the case of the Nagas. There therefore emerged a tension

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regarding the option of either assimilating the minorities or

respecting the minorities' culture. Those who favoured

assimilation argued against the setting up of the Scheduled

Areas and Autonomous District Councils (ADCs). However, the

dominance of Nehruvian liberals in the Assembly meant that

national identity was sought to be put forward through the

policy of (multicultural) accommodation rather than by

imposition.vi

To explain her position, Sonntag juxtaposes the Fifth and

the Sixth Schedules which guaranteed the creation of ADCs in

the tribal areas. She is of the view that the Fifth Schedule

was much more acceptable to the 'assimilationists' than the

Sixth Schedule because it was conceived as a temporary measure

vi A brief discussion of ethnic pluralism in a liberal democracy can be

found in Akhtar Majeed (2001:47-70). He says that to accept cultural

pluralism is also to accept the existence of liberal democracy. He puts

forward the idea that plural groups need not necessarily be seen as a

threat to the integration of a nation, but if not accommodated (emphasis

added) into the political system it may emerge as a threat. This view is

also similar to the ‘accommodation principle’ that was sought to be

conceived through the implementation of the provisions of the Sixth

Schedule.

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which had as its 'ultimate goal' the assimilation of the

tribals into the 'economic mainstream.' The Fifth Schedule

also did not provide for any provisions of self-government (or

self-rule), while the Sixth Schedule did. The 'practical

reason' for the differences in the Fifth and the Sixth

Schedules was the fact that only the tribes that were located

on the Southern flank of the Brahmaputra in Assam would get

autonomous councils because that was where the opposition to

the integration into the new Indian Union existed. The Sixth

Schedule was therefore, the outcome of the 'delicate

negotiations' between these tribes and the new government of

India (Sonntag 1999: 21-2).

The Sub-Committee on the North East Frontier (Assam)

Tribal and Excluded Areas argued that the nature of autonomy

expressed by the various groups were differentvii. However, a

broad similarity was present on the issues relating to land

rights, customs, traditions and traditional-indigenous

institutions among most groups in the North East. The Sub-

Committee observed that there was a generic fear of

exploitation in the minds of the tribes because of which they

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favoured the continuation of the Inner Line Regulation that was

introduced by the British government. Without it, the groups

argued, non-tribals would exploit them in the non-agricultural

professions. It is interesting to note that an Expert

Committee on Plains Tribes of Assam (1992) with Bhupinder

Singh as its Chairman that was appointed by the Government of

India made an investigation into the workings of the Sixth

Schedule and among other things it observed that there was a

sense of alarm with 'unchecked population' from the plains

among the local groups.viii It might be noted that the Sixth

Schedule empowered the ADC’s to make laws with respect to

marriage, inheritance, property, land and social customs and

that the Khasi Hill Autonomous District Council (KHADC) sought

to enact the Khasi Social Customs of Lineage Bill (henceforth

Khasi Bill) as an exercise of this power.

It becomes clear from the preceding debates that though

the Constitution recognized diversity and difference, it was

very cautious in its approach in recognizing itix. This,

referred to as a fear of 'excessive federalism', argues Arora

(1995 and 2010), was present initially because of historical

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reasons that existed at the time of the birth of the Union,

but gradually it seems that there exists a selective

recognition of diversity. In effect, not all diversities were

recognized in India. Though there were many Articles in the

Constitution which did, the full potential of the federal

vii Gopinath Bordoloi was appointed its Chairman and was entrusted with

the task of recommending the provisions for administering these areas.

Other members included J.J.M Nichols Roy, Rupnath Brahma and A.V

Thakkar. See See B. Shiva Rao, Framing of India’s Constitution, Vol. 3, (New

Delhi: Indian Institute of Public Administration), 1967, p. 684. Also

see 'Framing of the Sixth Schedule' at

http://www.khadc.nic.in/misc/Framing%20of%20the%206th

%20SChedule.pdf Date of Access 1st Jan 2012.

viii Land alienation among the tribals has plagued the North East with

issues arising from inter-community territorial disputes, which has

sometimes led to severe violence in the area. Drawing from the Guahati

based Eastern Press Service, Bhaumik (2009:62) notes that in a period of

30 years (1980-2008) there were 197 counts of 'mass killings' where more

than 30 people lost their lives in a single incident. The number of

deaths was the highest in Nellie (central Assam) where approximately

1,800 people were killed as a result of violence. Specifying these

incidents, Bhaumik notes that in June 1980 around 300 Bengali Hindu

settlers were killed in Mandai. In February 1983 more than 2,000 Bengali

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design was not realized. The reluctant recognition of

diversity caused diversity to be viewed as a divisive force.

Ethno-linguistic groups had to prove that they were 'important

enough' to be institutionally recognized and when the

democratic process of the polity was unable to channelize such

demands, it often turned out to be a serious challenge to the

state sometimes even leading to violence.

Voicing such concerns Mahajan (1996: 64-9) says that

there was a much more stronger emphasis on the size of a

community and the entire debate in the Constituent Assembly

was based upon an understanding where a distinction was made

between a 'political' and an 'ethnic' minority. Accordingly,

the framers felt that people would participate in the

democratic process along community lines where size would be a

determining factor and where ethnic or religious majorities

would also be political majorities and vice-versa. There was

Muslims were 'massacred' in Nellie. The Naga-Kuki conflict killed 78 in

February 1993. Thus, armed struggles by the Bodos, Assamese, Lalungs,

Mishings, Tripuris, Karbis,Dimasas, Nagas and Kukis, with issues

primarily rooted in land and 'identity' has been a constant source of

tension and violence in the North East.

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thus a fixing of identity, where one identity (or diversity)

was recognized and privileged over the others and in the case

of India, religion was taken to mean the 'most significant

indicator of personal identity'. Therefore, internally

differentiated and stratified aspects based on language,

region, caste and gender, both for the Hindu majority and the

minorities, did not figure in this understanding.

Apart from these issues certain provisions in the

Constitution, like Article 44, which urges the state to work

towards establishing a Uniform Civil Code (UCC) has generated

a lot of debate including major controversies. The UCC is

listed in the ‘Directive Principles’ but only as a non-

justifiable guideline. The root of this conflict was located

in the twin notion of rights enshrined in the Fundamental

Rights of the Constitution. Subsequently, the unit of the

ix For instance, Louisie Tillin argues that cultural factors have never

been the main reason for asymmetric arrangements in Jammu in Kashmir.

For more details see Tillin, Lousie. 2007. 'United in Diversity? Asymmetry

in Indian Federalism.' Publius: The Journal of Federalism, Volume 37. No. 1 2007.

Downloaded from SSRN: http://ssrn.com/abstract=1455576 or

doi:10.1093/publius/pjl017. Date of Access 21st October 2009.

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right bearer was both the individual and the collective. The

individual derive their rights from Articles 14 to 24 which

provide for equality and freedom and the collective derive

their rights from Articles 25 to 30 which guarantee religious

freedom and also the cultural and educational rights of

minorities. Such rights also serve as the basis of 'personal'

and 'customary' laws which cover matters of marriage,

inheritance and guardianship of children among various

minority groups.

Menon (1998) argues that since all personal laws are seen to

discriminate against the women the tension can be

conceptualized as a 'contradiction' between the rights of

women as 'individual' citizens of the society, and those of

religious communities which form the collective units of

democracy. However the reference of the UCC debate, argues

Menon (1998:PE3), was set in terms of the 'secular' and

religious communities where gender and the concerns and women

appeared as invisible. Taking cue from Derrida (1976), Menon

says that gender in these set terms appears as a supplement in

a double sense; that which is a mere addition, like an extra

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and also only as a supplementary that is supposed to fill a

void, or an absence (ibid: PE3).

Section III: Consequences of Asymmetry and Differentiated

Arrangements on Minority Women

Many issues that we have discussed in the preceding section,

like that of women and their rights, especially those arising

out of marriage and internal migration, have been raised by

various communities. All these issues may be regarded as

linked by the notion of the 'outsider', who it is believed, is

a disadvantage to the indigenous people and the ‘local’ in the

exercise of their rights and opportunities. Taking such a

background into account this section will examine the

consequences of special asymmetric provisions that have been

enshrined in the Constitution where specifically we will

examine Article 370 in Jammu and Kashmir (J&K) and the Sixth

Schedule with reference to Meghalaya. In illustrating the

kind of issues these asymmetric differentiated arrangements we

will examine the Inner Line Permit, Khasi Social Customs of

Lineage Bill in Meghalaya and the Permanent Resident

(Disqualification) Bill in J&K.

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In the case of the North East the Inner Line Permit (ILP)

which is an official travel document issued by the Government

of India to allow inward travel of an Indian citizen into a

protected/restricted area(s) within the territorial limits of

the state for a limited period has been a bone of contention

among various ethnic and other groups.x It might be noted that

the permit is issued only to an Indian citizen. The ILP can be

seen as an effort by the government to regulate movement in

certain areas that are located near the international border,

and are applicable to the states of Arunachal Pradesh,

Nagaland, Mizoram and inter-state borders in Assam.xi The Inner

Line Regulation of 1873 prohibited access to all these areas

to 'outsiders', except for those with the permit. Upadhyay

(2009: 30) says that the line created 'a frontier within a

frontier' which leads to an accentuation of the 'already

existing rift’ between the tribals and the non-tribals. The

Government of India Act 1935 continued this policy which

declared most of the hills areas of the region as 'excluded

areas' and these were to be outside the jurisdiction of the

provincial legislature. It is this Act in Section 311 clause

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1, says Upadhyay drawing from the work of J. David Whittaker

(2001: 1), that invented the term 'tribal areas' which was

defined as, “the areas along the frontiers of India, or in

Baluchistan which are not part of British India, or of Burma,

or of any Indian State, or of any foreign State” (ibid: 30).

These areas, as we have already discussed above, were later

inducted into the Sixth Schedule.

Xaxa (2008: 480-81) notes that there are three issues

that are interlinked with regard to migration, inheritance and

land rights. First, that of tribal traditions and tribal

customary law, according to which land is held through lineage

and not by the individual. In this case it is seen that apart

from using it the land cannot be transferred by sale or any

other means. This clearly shows the rationale of the two

bills, though in different contexts; where both seek to

control and regulate 'marriage' with a view to limit the

rights of women (inheritance, citizenship and property).

Secondly, the issue also relates to transfer of land from

tribal to non-tribalsxii which has been a cause of tension not

only in the North East, but as Arun Kumar (2006: 207-08) has

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pointed out, in many other tribal belts across India.xiii In the

case of J&K the issue is seen in terms of transfers from

'permanent residents' to non (permanent) residents and in

Meghalaya, from the Khasis to the non-Khasis (or non-tribals).

Thirdly, in the case of Meghalaya, the issue also relates to

the use of tribal reservations for employment or other

purposes by the children born from inter-tribal (or non-

tribal) marriages. In J&K, the issue may also be seen in terms

of employment in the public sector.

The KHADC under paragraph 3 of the Sixth Schedule had the

power to make laws, among other subjects, on marriage,

divorce, and social customs. KHADC also had constitutional

jurisdiction over Khasi customary law---- the largely

unwritten indigenous laws recognized and applied by the

community to its different facets of social and political

interaction. In exercising its powers to make laws under

paragraph 3, clauses (h), (i) and (j) of the Sixth Schedule,

the KHADC contended that such an Act was necessary to provide

for a strict following of the prevailing Khasi social customs

of lineage and to preserve the traditional matrilineal system

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of society. The Act also sought to prevent claims of Khasi

status by 'unscrupulous' persons purely for benefits,

concessions or privileges conferred on the Khasi tribe as

members of the Scheduled Tribe.

Nongbri (2003: 229-56) notes that the most significant

x For a brief but excellent discussion of the historical roots of the

'Inner Line' in British colonial administration and outlook and the

post-independent incarnation see Bodhisattva Kar, 2009. ‘When was the

Postcolonial? A History of Policing Impossible Lines.’ in Sanjib Baruah

(ed.) Kar (2009:52) says that in the British imagination the Inner line

excluded in a territorial manner, both the impact of ‘capital’ and also

the ‘historical pace of development and progress’ where it provided a

‘slip’ between the conflicting worlds of ‘capital and pre-capital’ seen

in terms of the ‘modern and the primitive’. Kar holds that the current

policy literature on the North East is focused on the much publicized

‘Look East’ programme of the Government of India, which was created

during the ‘liberalization’ of the 1990s which calls for deeper trade

commerce and ‘integration’ among the Association for South East Asian

Nations (ASEAN) and India. Kar draws uncanny resemblances between this

‘modern’ policy and the British imagination in colonial times, thereby

his question, ‘When was the post-colonial?’

xi The Bengal Eastern Frontier Regulation 1873, and the Chin Hill

Regulations 1896, provide special protection and safeguard for the

peaceful existence of the indigenous tribal people of Arunachal Pradesh.

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aspect of this construction is that while it reiterates the

traditional custom of lineage as firmly grounded in

matrilineal principles according to which a child would always

belong to his/her mother's kur, jait or clan, yet, if a Khasi

woman or a man has a non-Khasi spouse, then the offspring

along with the parents would be required to prove their

bonafide in accordance with the prescribed norms in order to

retain or acquire their identity as Khasis. Further, Section

10 of the Bill also clearly states that a Khasi person shall

lose Khasi status if he/she fails to comply with any

requirements or provisions of the Act or the rules or orders

made there under, or fails to observe the Khasi matrilineal

system of lineage or Khasi laws of inheritance, succession,

consanguinity and kinship, or has adopted other laws, or is

deprived of Khasi status by a court. The onus of proof is also

on the person who asserts that he/she is a Khasi and the order

These laws prohibit the entry of outsiders in the tribal area without

'Inner Line Permit'. It is also seen that only the indigenous tribal

people are allowed to participate in the democratic process of the

state. URL:http://indiacode.nic.in/coiweb/amend/amend83.htm, Accessed on

24th Nov 2009

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depriving the person of the status could be made by the

registration authority simply on a complaint, report or

information by any person, authority, chief, headman,

association, body or even on its own motion. Section 19 of

the bills forbids civil courts from taking up cases that are

likely to be thrown up by the implementation of this Bill.

Thus, a form of state control over identity is put forward

where eventually the woman’s 'body' becomes the site of the

contest leading to a conditional recognition of diversity. It

follows that any person who has been deprived by the loss of

the Khasi status would be automatically divested of his/her

right to inheritance, succession and the person would no

longer be entitled to any privilege or concession which a

Khasi person would be otherwise eligible as a member of the

Khasi Scheduled Tribe. The people who go against this could be

imprisoned and/ or fined for violation.

The implications for women are great as is also

exemplified by the Permanent Resident (Disqualification) Bill

(henceforth Daughter's Bill) introduced in the J&K state

legislative assembly. In the said Bill a women had to forego

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all her rights as the 'state subject' of J&K, if she choose to

marry a person who was not a state subject (Singh and Vohra

2007). The similarity of the two in their objective make it

clear that in constitutionally protected areas like J&K and

Meghalaya, questions of the gendered notion of citizenship

that is inherent and made explicit in the various policy

responses and laws are rarely addressed. This is further made

complex, as has been pointed out by Roy (2001, 2008 and 2010)

because the 'outsider' or the 'migrant' is neither a set

category chiselled in stone, nor is it always the result of

xiiApart from the Khasis issues arising out of marriage and land alienation

have plagued not only the tribal areas of the North East, but also other

tribal belts of India. Virginius Xaxa (2007:188-189) drawing from the

work of K.S Singh (1988) notes that among the Hos of Singhbum, tribal

women are accused of 'aligning' with the dikus (outsiders) and as co-

conspirators in land transfers from tribals to non-tribals. After such

transfers are complete, it is seen that in most cases the non- tribal

men desert their tribal wives. Xaxa says that this is also one of the

reasons why there is 'indignation' against tribal woman marrying

'outsiders'.

xiii. For more details see Arun Kumar (2006:203-217) for Andhra Pradesh,

and Kripa Shanker (2006:169-181) for Uttar Pradesh in Govinda C. Rath.

2006 (ed.)

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displacement. These categories are therefore fluid concepts

that are often made and unmade by the laws of the state and

the various policy responses.

Section IV: Conclusions

We need to ask the question as to how should the fine

line be drawn between the question of preserving the rights of

a community that has been guaranteed by statue and also

through Constitutional provisions on the one hand, and on the

other hand, reconciling questions raised by gender and

individual rights? In the case of Meghalaya, who Upadhaya

(2009) believes to be a 'less troubled state in the region' xiv

there is an increased 'turbulence' since the 1980s seen in the

demands and activities of the Khasi Students' Union and the

Federation of Khasi, Jaintia and Garo People (2009:46). A

court ruling permitting non-domicile Indians to settle in

three north-eastern states of Nagaland, Mizoram and Arunachal

xiv Upadhyay (2009:46) also notes the 'active militant groups' in the state

comprising of the Achik National Volunteer Council (ANVC), the

Hynniewtrep National Liberation Council (HNLC) and the People's National

Liberation Front of Meghalaya (PLFM).

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Pradesh without obtaining a permit created a furore in the

region with the affected states saying they would appeal

against the ruling. The Guwahati High Court, responding to a

public suit against the ILP system had barred the government

of Mizoram from arresting or deporting any Indian nationals on

the ground that they did not possess the document. In this

regard the three state governments planned to move a division

bench of the High Court and even the Supreme Court to get the

verdict overturned.

In Jammu, the opposition to the Daughter's Bill was taken

over by the Bharatiya Janata Party (BJP), who sought to play

the rhetoric of 'anti-national' and 'anti-Jammu'. Chowdhary

(2010) shows how the responses actually sidelined the central

issue of women with other issues. The campaign against the

Bill was carried out mainly by the forces of the Hindu right

whose major objection to the Bill was that it was 'pro-

Kashmir' and 'anti-Jammu'. Both the BJP and the Bar

Association of Jammu were of the view that it was biased

against Jammu and was also 'anti-Hindu.' Similarly Panun

Kashmir (our Kashmir), a group representing the Kashmiri

27

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Pandits, also spoke against the bill and argued that 'the

government is making efforts to disfranchise the womenfolk of

the state by bringing draconian Bills in the Assembly'xv

Therefore, the opposition to the Bill was being given a

communal and a divisive colour.

Both the Bills, therefore, creates and defines spaces of

'legality' and 'illegality' through the laying down conditions

and procedures for women, making the exercise of

differentiated citizenship rights through the practice of

asymmetric federalism impossible. Baruah (2005) argues that in

the case of the Khasis, this attempt to codify the customary

practices of the Khasi drew attention to the 'liberal way' in

which the Khasis have traditionally incorporated the

'outsiders' into their fold. But the cost of implementing the

Bill is, as we have already discussed earlier, the control of

women's sexuality in the garb of maintaining 'ethnic purity'.

Therefore, the ethnic 'outsider', and more importantly the

woman, becomes the 'ethnic subject' who is deprived of the

right to live a life according to one's own choices,

xv URL: http://www.thenorthlines.com/newsdet.aspx?q=30074 Date of Access31st May 2011

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especially those that relate to marriage and migration. In

this case, the promise of citizenship as T.H Marshall had

argued that of ‘full membership in the community' does not

hold.

It may be mentioned that the controversy generated by the

Khasi Bill was considerable, but as both Baruah (2005) and

Nongbri (2003) suggests, the traditional conception of Khasi

membership is highly progressive, in the sense that while

descent is traced through the female, it does not stop the

children of non-Khasi women from being absorbed into the Khasi

society where the adopted names gradually come to be

recognized. This would make the Khasi boundary porous and make

the addition of new members 'relatively easy' and transform

the 'denizens' into citizens.xvi Put in another manner, the

Khasi society is already suspicious of external infiltration.

Though there is a certain degree (that is fast eroding) of

economic empowerment of women this does not coincide with

xviBaruah (2005:208) uses the term ‘denizens’ to describe the power of

'denization' that British monarchs had to grant aliens some of the

privileges of the natural born subjects. He argues that 'denizens' could

buy land but could not inherit it.

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political empowerment. It is seen that contemporary process of

urbanization and the logic of the 'market' has benefited men,

who have managed to take the maximum advantage of

'modernization'. Customary rules and procedures do catapult

the status of women by tracing the clan and race through

women, but when it comes to political participation in

traditional institutions, it reserves the sphere with utmost

severity (Nessa 2006: 73-81).

Dev (2004) notes instances such as a group of children

refusing to hold hands together during Christmas because the

father of the child was a non-Khasi, or the references made to

someone as 'Khariap' indicating his/her status as a dead Khasi,

or also the fact that the Khasi resent the Naga, Mizo and the

Manipuri youth because they believe that they are corrupting

the Khasi youths, where all these point towards ethnic

exclusivity, and the terrain on which this conflict unfolds is

eventually on the body of the women, who becomes in Baruah's

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words, a 'denizen'.

In both J&K and Meghalaya, it is important to see how the

legal understandings of 'gender justice'xvii have affected

women, both in terms of their rights and the definitions of

citizenship. Ratna Kapur (2007: 117-120) says that as far as

xviiFor a discussion see Anne Marie Goetz, ‘Gender Justice, Citizenship and

Entitlements: Core Concepts, Central Debates and New Directions for

Research’, in Mukhopadhyay and Singh 2007.(eds.) Gender Justice, Citizenship and

Development. Zubaan (Kail for Women) and IDRC, New Delhi. Pg 19-26.

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are subjected to the notions of 'legality' and 'illegality',

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ENDNOTES

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