RANJU DODUM | 7 SEPTEMBER, 2021
A legal bind
ITANAGAR: In the last ten days of August this year, one topic began dominating social media and social circles in Arunachal Pradesh - what rights do women have over the land they are born in?
According to official government records, Arunachal Pradesh is home to ‘26 major tribes and over 100 sub-tribes’. The state’s population as per the last Census was 13,82,611 and it has an area of 83,743 square kilometres. The projected population by most counts puts the numbers closer to 16 lakh, which would still make it one of the least populated states.
As in other Indigenous-majority areas and states, customary laws are still practised at various levels of government and sometimes even in the dispensation of law for minor offences. And, as in most parts of India, land inheritance laws have traditionally favoured men, or fathers and sons.
For almost all Indigenous communities in Arunachal Pradesh, ancestral immovable property can only be passed down to the sons of the family. In case a direct male heir does not exist, it passes to the next male kin which could be the brother of the landowner or his nephew.
This, however, does not imply that women cannot inherit land or immovable property. Parents can and often do pass on land that they have acquired through purchase or other transactions to their daughters during their lifetime.
In fact, arguably, women in Arunachal and other Indigenous societies have a greater amount of freedom (although not greater rights) than their counterparts in several other parts worldwide.
In Arunachal, daughters are also often given traditional necklaces made from a variety of beads that are valued differently by different tribes and the cost of which can often run into lakhs.
These beads along with the bovine ‘mithun’ have traditionally been the indicators of wealth of a family in Indigenous societies, and in the great irony of our times, help rich families to continue becoming richer.
With the advent of time, bad roads and great cars have become a unique characteristic of life in modern Arunachal Pradesh. But along with the modern symbols of wealth, many still hold dear the traditions of old. None more so perhaps than those that dictate the rights of marriage and ownership of land.
An article published in a local newspaper in the last week of July flew below most people’s radars.
Dr Topi Basar, the head of the law department in the Rajiv Gandhi University near the capital Itanagar, wrote a legal analysis of the now infamous Arunachal Pradesh Marriage and Inheritance of Property Bill, 2021.
For about a month, the article and the ‘Bill’ were largely ignored and, in fact, much of the public did not even know that such a document had been drafted.
The existence of the draft and the article about it came to people’s attention around the third week of August, and Basar fast became the subject of criticism and trolling on social media.
This happened even though she was not part of the committee of the Arunachal Pradesh State Commission for Women (APSCW) that had drafted the document, and her article offered only an analysis of its features and did not support or oppose it. In fact, Basar had highlighted that there are some sections of the document that require more clarity.
Such details are often ignored in the discourse of collective anger and Basar was heavily trolled online, with many even stooping to make personal attacks directed at her marital status and family.
The harassment became such that she had to write to the women’s commission to issue a clarification that she had no role in the drafting of the document - which the APSCW did at a press conference later and with less gusto than perhaps expected.
By now the anger had spilled over from social to mainstream media, with students’ unions including the All Arunachal Pradesh Students’ Union (AAPSU) and Indigenous representative organisations like the All Nyishi Youth Association and the Arunachal Indigenous Tribes Forum among others weighing in to criticise the document in question.
Since the state Legislative Assembly session scheduled to begin on August 27, there were real fears that the ‘Bill’ would be tabled and passed. This fear pervaded even though it was not an actual ‘Bill’ but a document drafted by the women’s commission and submitted to the state government. It had not been studied or scrutinised by the government’s legal bodies.
The clamour over the draft came to such a head that home minister Bamang Felix had to tell the media that the document had not been drafted by the law department and would not be tabled (and it was not) in the Assembly session.
With the Assembly session over and the ‘Bill’ not tabled, discussions in the state have moved on to the deteriorating road conditions due to heavy monsoon showers in recent weeks and the promotion of palm oil cultivation.
While the discussions have died down, the furore it raised just around two weeks ago highlights several issues that need further discussion.
Two sections of the draft that had the majority of men and some women up in arms had to do with the provision of land rights to Indigenous tribal women of the state.
Like in parts of Sikkim, and the states of Manipur, Mizoram and Nagaland, Arunachal Pradesh falls under the provisions of the Bengal Eastern Frontier Regulation which offers certain protection to the vulnerable tribal populations, one of them being that people not belonging to any of the Indigenous communities of the state cannot own immovable property (land).
Similar provisions are provided for in Himachal Pradesh and other areas falling under the ambit of the Sixth Schedule of the Indian Constitution. It was also applicable in Jammu & Kashmir when it was still a state.
Hence, it is not a provision unique to the states in the Northeast.
The regulation also makes it mandatory for Indian citizens of other states to procure an inner line permit to enter the state.
While Indian Hindu right-wing commentators often use the garb of nationalism to say that such laws are discriminatory and akin to requiring visas to enter another state within the country, they enjoy large-scale support within the areas where they are applicable.
In Arunachal Pradesh, this translates into almost all land exclusively being owned by people who are part of the communities listed as Arunachal Pradesh Scheduled Tribes (APST). Those not in this category are not just non-Tribal but also non-APST.
Although the land is owned by people who are APST, on the commercial front, most businesses tend to be operated on a daily basis by migrants belonging to various communities from outside the state, including Assamese, Bengalis, Biharis and Marwaris, with a smattering of Malayalis.
Considering that Arunachal Pradesh only officially became a state in 1987, its largely then-illiterate and agrarian communities for a long period were reliant on investment from outside the state. While a new crop of young entrepreneurs have taken strides on the economic front, major sectors including the foreign liquor industry continue to be funded and operated by those whose ancestral roots lie outside the state.
This system still provides a sense of ownership to Indigenous communities as guardians of the land and helps reinforce a sense of security over tribal lands.
The draft submitted by the women’s commission has rattled that sense of security among many.
A section in the document raises the point of the “Right of an APST woman married to non-APST on inherited immoveable property”. The section states:
“An APST woman married to non APST man shall enjoy any immovable property inherited from the head of the family in her lifetime, subject to the basic limit that the properties so inherited would devolve, in the event of her death upon the heirs of her ancestors from whom she inherited.
The other section that has ruffled feathers is elucidated under the “Right of an APST woman married to non-APST on immoveable property owned and acquired by her” which states:
“An APST woman married to non-APST man shall enjoy the right of any immovable property owned and acquired by her in her lifetime. In the event of her death her husband and her heirs would have full rights of it for disposal and alienation to any indigenous tribal of Arunachal Pradesh”.
The document is unclear on what timeline a non-APST man has before he is to dispose the property. It also does not clarify what would happen to the minor children of such a marriage if both parents die at the time, making them orphans.
Critics of the document point out that there have been cases where the children of such marriages can and have married APST women, effectively becoming owners of the land.
Some critics have even suggested that upon marrying a non-APST man, the APST woman should give up her ST status, effectively ruling out any land right within the state.
Such suggestions have precedence.
In 2019, the Jharkhand government said that a non-Adivasi man marrying an Adivasi woman would have no right over the land acquired by her and that it could not be transferred to their children after the woman’s death. After death, the property is to return to the family from whom the land was purchased.
Those who voice concerns over the proposals of land ownership in the draft often cite Tripura and Meghalaya as examples.
Through decades of migration, Tripura’s once-Indigenous majority has become a minority in the state.
In Meghalaya amongst the Khasi tribe, land is traditionally passed down to the youngest daughter in the family and lineage is drawn from the mother - although social and political power is very much exercised by the men, as seen in the traditional tribal councils, the dorbar shnongs.
There has been growing clamour for the introduction of the inner line permit in Meghalaya for non-residents to enter the state as is required in Arunachal Pradesh, and effectively to make it difficult for ‘outsiders’ to own land in the state.
The issue of land, though, is not just emotive but also economic. Rights over land give a sense of security to indigenous communities that they are the custodians of the land and the traditions that bind them to it.
Women who support the document ask that since they too are daughters of the land, why should they not be allowed to own it?
For those opposed to the document, there are a few legal hurdles presented by the Indian legal system.
The argument that women who marry non-APST men should give up their Tribal status will not hold water in Indian courts.
Even within inter-tribe marriages, a woman cannot legally change her tribe, although societally she may be accepted into the tribe of her husband.
In the matter of children borne of a marriage between an APST woman and a non-APST man, the courts are likely to award Tribal status to the children.
A 2019 ruling by the Nagpur branch of the Bombay High Court held that children from intercaste marriages can take on their mother’s caste.
In August, just days before the controversy in Arunachal broke out, the Delhi High Court turned down a plea by a man who was seeking direction to reflect his name as his daughter’s surname in official documents.
The judge, Justice Rekha Palli, remarked that the father “does not own the daughter to dictate that she should use only his surname”.
Several state governments have, in fact, passed similar orders permitting the use of the mother’s surname and caste and tribal identification for the children.
In fact, it is not an anomaly even in Arunachal Pradesh, where there are several cases of children born and raised by APST mothers and non-APST fathers who use their mother’s tribal surnames for land ownership and other rights.
This is another issue that has been raging for a while in the state, with the All Arunachal Pradesh Students’ Union (AAPSU) leading the fight.
This Friday, amidst the dying down of the debate, the AAPSU served a seven-day ultimatum to the state’s Social Justice, Empowerment and Tribal Affairs secretary, demanding that the proposed draft law on the “offspring” issue be published.
The AAPSU has been demanding a solution to the matter of children of an APST woman and a non-APST man enjoying ST benefits in the state. The union has so far not publicly named names of influential people who have used their mother’s tribe to acquire property and amass wealth in the state.
Even if earlier court rulings do not favour the demand for cancelling ST status of children born to non-APST fathers, there will be voices that say that that is exactly why the Bengal Eastern Frontier Regulation exists - to provide special protection to tribal groups.
Amidst the controversy surrounding land ownership rights, another point from the document that has not seen the same amount of debate is the one relating to polygamy (specifically polygyny).
Amongst almost all the indigenous tribes of the state, the practice of a man having more than one wife was traditionally accepted. With the advent of time, attitudes towards polygyny have changed but it still continues to be practised among some tribes.
To a lesser extent, polyandry was also practised by certain tribes but it has dwindled over the years. Among some tribes, there have also been instances in the past when women moved in to their husband’s brother’s home when the husband has been away for work for long periods.
Both are points hardly discussed in public.
While proponents of polygyny (often young men with dreams of one day expanding their harem) argue that the practice is part of tradition, those against it say that the conditions that made it favourable in the old days do not exist anymore.
Back when produce from agriculture was the main source of nutrition, fathering a large brood of children from multiple wives was encouraged and almost seen as necessary. However, with nuclear families becoming the norm, arguments against the practice have grown.
During a recent webinar on women’s rights, Radhilu Chai Techi, the chairwoman of the APSCW observed that many men do not practise the old traditions in their everyday lives, but appear to be proponents of tradition when it comes to polygamy.
Her statement raises two important questions for societies the world over - what traditions are worth saving, and who gets to decide?