A no woman’s land

[ Gaby Miyum Damin ]

We are in a historic time. A draft Arunachal Pradesh marriage and inheritance of property bill is in place. But why the furore and the uproar?

The women’s commission has already clarified the most contentious clauses.

“Section 42 ensures that the ancestral property that the APST woman has acquired from her parents will go back to the family (her parents/brothers/sisters) upon her death.”

Section 43 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 clauses are self-explanatory. Nowhere is there any mention that a non-APST spouse or heirs will acquire property, which seems to be the bone of contention for most people.

So, some questions need to be asked.

Some pertinent questions

  1. What is the basis of protests around the bill without reading the original draft and nitpicking on certain clauses to suit one’s own interest and divide opinion?
  2. How can the work of the women’s commission and civil society bodies consisting of legal and gender experts who have worked tirelessly over the decades be dismissed because some section decides it is against ‘tribal rights’, that also on unfounded basis?
  3. Is it really an issue of protecting tribal land rights (“not against the women of Arunachal Pradesh,” as they claim), or is there a larger issue?

Customary laws are manmade; women were excluded from the narrative and participation from the very beginning. A group of men came together and formulated these laws to suit the needs of our society at that particular time.

We are now in a civil society, which is based on universal values, one of the most important being equality. Basing one’s argument on tribal customary laws to keep women deprived of property rights is not acceptable to any society which is based on the concept of equality. If it is so, if it truly is in tribal customs and laws to treat women as unequal to men, do we need such customs to exist?

What are they saying? How valid is it?

One of the arguments against the bill is that equal rights have been given to males and females in tribal societies since time immemorial, so no such bill is needed; but customary and traditional laws have allowed land to be inherited only by men.

What equality and equal rights are we talking about then? In a society where polygamy, domestic violence and son preference is rampant, where no property rights exist for childless, sonless women, or for that matter women in general – it is for these very reasons that the need of the hour, in fact long overdue, is a law safeguarding the rights of tribal women of our state who are amongst the most vulnerable and marginalized.

Another argument is that the bill will lead to permanent settlement of non-tribals in the state by virtue of APST women marrying non-APST men. If people had only bothered to read the correct draft and attended the deliberations instead of resorting to assumptions, all of this would not have been a concern. The stakeholders who have worked on the draft aren’t novices, nor are they unaware of the socio-political realities of our state. They are very well-read and experienced people in the field of gender and law, who have worked tirelessly for gender justice over several years, and this knowledge clearly reflects in the draft bill. The absence of property rights for women has been one of the reasons why ST women of our state have continued to use the status to have access to financial resources. With clauses as mentioned in the draft bill, unlike the general public assumption, there will be laws in place to ensure that the property is disposed of to the indigenous tribal of the state. There are no such laws at present.

The draft bill has been called undemocratic and undermining the community-based organizations. But what actually is undemocratic is to oppress a large section of the society in the name of customary laws.

How does a society claim itself to be democratic when all the community-based organizations and student bodies have barely any women representation? Most of the community-based organizations and student bodies render lip service to gender equality by having a namesake women’s wing, relegating it to essentialist ‘women’ activities and with hardly any decision-making power. How can they claim to be representatives of a community when the women of their tribes are missing and invisible in important positions of their organizational structure?

Some have argued that married women already enjoy the right to all the inherited property by their husband. This understanding of women’s rights to property in relation to a male figure is deeply problematic. This gives a notion that women don’t have to/cannot enjoy property rights on their own as an ‘individual’ but can only do so at the expense of a male figure. The idea that a woman can inherit and acquire property and decide how to dispose of it no wonder is so repulsing and revolting to the prevalent patriarchal mindset.

Yes, there are customary laws of several tribes for marriage, property and divorce. But are they in tandem with the rights guaranteed by our constitution? How many of them have been codified? How many tribal women have had access to alimony and divorce? How many tribal women have acquired property under customary laws? If the interest of tribal women in customary laws really existed, there would have been in-depth research and review of the existing laws and any subsequent lacunae in those laws should have been worked upon. Mere existence of laws doesn’t guarantee justice. Reforms from within the community, awareness and access to those laws for the common public should be our prerogative, rather than dismissing a well-drafted bill on flimsy grounds now.

Not long ago, the same people were celebrating the criminalization of triple talaq and berating Muslim customary laws. But when it’s time to clean up one’s own backyard, where is everyone? Unfortunately, we believe only what we want to believe and turn a blind eye to the dismal and oppressive situations our own women are in.

There are several issues that confront a patriarchal tribal society like Arunachal Pradesh. Its archaic customary laws of several tribes and the Bengal Frontier Regulation Act, 1873, are conveniently, when desired, used to counter any gender reforms, particularly in context of property rights. Customary laws are a crucial aspect of any tribal society, but that doesn’t mean that they are beyond reform. Is the basic structure of any tribe based on the denial of right of property to its women?

While giving the historic judgement in 2015 that annulled a decades-old tribal custom that allowed only men to inherit property in several districts of Himachal Pradesh, Justice Rajiv Sharma observed that laws must evolve with the times if societies were to progress. The high court held that daughters of tribal areas were also entitled to inheritance of property as equality of rights was a constitutional right and would prevail over statutory rights.

Also, to discuss polygamy, divorce, marriage and property rights as separate and unrelated is to arrive at a reductionist analysis of the draft proposal, because we fail to take stock of other intersectional social realities that affect a woman’s living experience.

The draft bill and its clauses ensure property rights to women, which means that women would no longer be at the mercy of male members of her family. Financial independence empowers her with agency to opt out of abusive marriages, seek divorce and receive alimony, which unfortunately is not the case today. Most women stay in polygamous marriages because there is no financial security for them or their children as no proper property rights laws exist to safeguard their interest. One of the reasons for polygamy is also the resistance and reluctance by men to pay alimony to the divorced wife. In some tribes, women cannot seek divorce despite harassment and abuse due to their inability to pay back the bride price. It is a vicious circle for most women and they unfortunately have no resort to justice in the customary laws, which are often discriminative.

The most common adjective used for highlighting women’s advancement in our tribal society is by weighing tribal women’s right and equality in terms of their access to education, how free they are to wear what they want, free to go out, free to have careers, free to have male acquaintances, but never in terms of their access to social, political and economic rights. Because that’s where the grave depravity lies!

Access to education has hardly brought any changes in the structure of our tribal society. Where is gender justice in institutions like marriage, property rights? Where are women in the political space, in the decision-making bodies? Missing and invisible.

The larger picture: A no woman’s land

If one closely looks at the larger picture, the issue is not APST women marrying non-APST men and subsequent property disposal or not – even is it a case of protection of tribal land rights at all?

The real issue is power and patriarchy. It must be a disturbing and horrifying prospect for these tribal men to let go of the power they have had over the public space as well as personal space for so long in the name of customary laws.

Take this. Why do people have opposition to the draft proposal regarding a woman’s own acquired property and decision whom to dispose it of to when it is clearly mentioned in Section 43 that the property will be disposed of to indigenous tribal of Arunachal Pradesh? Because, unlike in most customary laws, where heirs are always men, the draft bill proposes that the subsequent heirs in such cases can be women’s female kin members as well.

Why so much resistance to a draft bill which thrusts upon registration of marriage, property rights, divorce laws, alimony and treats polygamy as an offence?

The draft bill is not just about APST women marrying non-APST men and their property rights, but encompasses and advocates the larger interest and rights of all the tribal women of Arunachal Pradesh. So why has the backlash been so vicious?

The real issue is the inability to accept that women will acquire property, have access to divorce, alimony, have a way out of abusive and polygamous marriages and live a life of dignity, all of which will ultimately dent the privileges and power tribal men have enjoyed under customary laws since time immemorial.

The reluctance of all these male dominated organizations to even read the complete correct draft, attend the meetings, deliberations and resorting to ‘aggressive’ opposition reeks of a narrow understanding of justice and law and reveals a conservative patriarchal mindset so deeply prevalent in our society that is fear of losing control and seeing women as their equals.

All the opposition and backlash was always expected. A society so comfortable with the status quo, a gender so used to privilege and power, would they ever let go all of it easily?

When a community negates the rights of a tribal woman by making a case of violation of tribal rights, one needs to question, are only tribal men indigenous? Women aren’t?

Everything that is transpiring in our state has transpired in all societies whenever women have challenged injustice and stood up for change. The tribal women of our state are divided, some of them married to APST men and being comrades to the opposition will see it one day when the same ‘patriarchy’ comes for them in the form of polygamy, divorce, domestic violence, being denied property and the cycle repeating through generations. Injustice is universal, particularly if you are a minority.

All the stakeholders who have worked tirelessly on the draft, women who are speaking out, you are making history. The coming generations have a chance to be equal members in a truly egalitarian tribal society.

Chief Minister Pema Khandu assured that they want to give the daughters of Arunachal Pradesh equal rights in all aspects. Treat us as women with individual rights in a civil democratic country like India. Do not make us a scapegoat for appeasing any community or organization. Let there be no more Shah Banos. You have the opportunity at hand to take a progressive stand even in the face of regressive opposition. History will judge you on your decision as it will show what direction our society moves.

All the men proclaiming love for their daughters and sisters, yet do not see them as equal? All the mothers who claim to love their daughters yet you resign them to the same fate as yours; a life of indignity and that of a second-class citizen. How do you snatch one’s share to feed the other and say you love equally? It’s a shame. ‘Daughters’ know your rights, and the trope of sentimentality that is played around your gender keeping you trapped in this oppressive structure. How can they love you when they don’t consider you an equal to your brothers and deserving a share of something as basic as that of a property? Radical? So be it.

There are so many roadblocks for women to own property in a tribal society, infringing even upon her basic right to marry by her own choice. There is a price a tribal woman pays when she makes the choice to marry a non-tribal and that is to give up something as basic as property right, all in the name of preserving tribal land rights. When has a tribal man made a choice like that?

Tribal rights must not be used as a shield against gender reforms. The rights of tribal women are equally important. Tribal rights must be in the interest of tribal women as well. When a community negates the rights of a tribal woman by making a case of violation of tribal rights, one needs to question, are only tribal men indigenous? Women aren’t?

All the trolling, rape threats, abuse of women online supporting the bill and the brutal malicious responses to a mere draft bill proposing equal rights for tribal women makes one wonder if we really live in ‘a no women’s land’. (The contributor is a PhD scholar in the sociology department of NEHU, Shillong, specializing in women and gender studies.)