Opposing women reservation is ‘male chauvinism’ – Rtd SC judge
Kohima, Nov. 14 (EMN): Against the backdrop of the fallout between the state government, women bodies and tribe organisations over reservation of seats for women in municipal elections earlier this year, HK Sema, a retired judge of the Supreme Court, today categorically said that opposition to women reservation was a display of male chauvinism.
Those opposing women reservation had claimed that it infringes on Article 371A of the Constitution of India. Sema pointed out that none of the four clauses under the 371A prohibits women reservation. However, assuming there is such a custom that does prohibit reservation, he said that still, any custom which is opposed to public policy is invalid in law and Article 243T, which requires the states to reserve seats for women in municipalities, is a public policy.
Sema also explained that what Article 371A prohibits is an ‘act of Parliament’ and does not forbid the state legislature to make its legislation. “Women reservation is not an act of Parliament, it is a legislation passed by the Nagaland Legislative Assembly….. Article 371A empowers the State Assembly to make laws,” he said.
Questioning which part of the provisions opposed reservation of seats for women, the former chief justice asserted that the claim ‘customary law and practices’ prohibited women reservation, is an “out and out male chauvinism”. He asked if the people should go back to headhunting just because it was custom practiced by the forefathers, implying that good customs should be taken forward while the bad ones should be left behind.
Giving more background on the subject, Sema cited that the equality clause enshrined in Article 14 provides for equal treatment in equal circumstances, and does not mean that rich and poor should be taxed equally.
“In an orthodox tradition-bound patriarchal society like Naga, can we say men and women are equal? No. They are not equal, that is why the reservation is necessary. It is simply to level the playing field,” he asserted.
Pointing out that the core of the issue was Nagas think that because of Article 371 (A) other provisions of the Constitution are not applicable in the state, Sema emphasized that the apex Court had time and again made it clear that the custom and personal law cannot override the statutory provisions of the Constitution. He reiterated that Article 15 is a mandate of the Constitution which allows the state to pass special legislation for the protection of women, and then there was Article 243T, which requires the states to reserve seats for women in municipalities.
Expressing that the election to urban local bodies (ULBs) happened because of the lack of education, Sema said matters like the Constitution, judiciary and democracy were new to tribal areas like Nagaland mainly due to lack of education.
Stating that women reservation has become a constitutional right, he maintained there is a lurking danger if Nagas think that because of Article 371A other provisions of the Constitution are not applicable to Nagaland. “Our state is a creation of the Constitution. Nagaland state is a creature of Article 3 of the Constitution of India,” he asserted, adding as such, a customary law cannot override constitutional provisions.
“If you want to assert your right then you have to learn and know the law. If Article 371A is continued to be misinterpreted then one day the Supreme Court may say even if you have a personal law, you cannot override the constitutional mandate. No authority can prevail (sic) the law,” Sema stated.
Also taking a jibe at the trend of recent supposed consultation processes, Sema candidly said he has decided not to participate in anymore consultative meetings as participants were hardly allowed five minutes each to share their views, which according to him was impossible to communicate anything leave alone one’s views.
The retired judge emphasised that if required, he was willing to explain the legal aspect of the women reservation to all the tribal bodies that are opposed to reservation. He called upon the ‘creamy layer’ (educated lot) of the society to communicate more with the people at the grassroots levels. Recalling that no one from the mainland referred to him as ‘Sema judge’ but only as ‘Naga judge’, Sema underscored the need for all Nagas to do away with ‘ism’ and learn to keep ‘Naga’ before ‘self’.
Speaking on the topic ‘Women’s rights and equality- the Naga context’, Dr. Rosemary Dzuvichu, head of department Women Studies Centre NU, maintained that gender equality is the heart and soul of what human rights is all about. Talking about the principles of the United Nations’ Committee on the Elimination of Discrimination against Women (CEDAW), she said India being a signatory to this Bill, makes its states’ responsibility to promote and protect the rights of women.
In the context of Naga women, right from the 1950s when the Naga issue started building up with voices of freedom, Naga women participated in talking about stopping a war, speaking about combating violence and there was no time for them to think about their rights, to read or articulate about their rights.
Dzuvichu pointed out that Nagas talk about themselves as a democratic and egalitarian society, but the reality was that, women’s rights activists were censured with derogatory language as with those in the 19th century in the western world. She lamented that the Constitution makes women as equals with men but Naga women were still bound with various kinds of conditions.
On the ‘movement of Naga women’, she said there were varying perspectives from a varied group of the society including within women themselves, especially a majority of those who do not know how the Naga women in rural areas live.
According to her, the questions at hand are, can women sit in the tribal hohos, in the village councils, in the village judiciary, in an urban planning body, do Naga women have the courage to sit within the state assembly where no other Naga women has ever sat? Dzuvichu stated it paradoxical that on one side the people are talking of women’s rights, at the CEDAW and the constitutional law, and yet they were bound by conditions, threats and bias.
“The most disappointing part of the Naga women movement is also today, the law has been misinterpreted by Naga lawyers (both male and female) who actually should be standing on the constitution, and they have been educating the tribal leaders, interpreting the law… to such an extent that today, we have most of the tribe women leaders being identified as anti-Naga, Indian agents, prostitutes…..,” Dzuvichu lamented. She asserted that it was time for both Naga men and women to really understand the law and if the law guarantees so much of rights for women then women need the kind of respect that they deserve.
She implied that even outwardly Naga society needs to go a long way in empowering its women but the fact was that it does not admit to the array of injustice that is being done to women inwardly as well. Towards this, she pointed to women not being given opportunity to sit in traditional bodies, domestic violence, child marriage, polygamy, ostracization of divorced women, unequal wages for similar work etc. coupled with the silence of the church on these issues.
She asserted that the Naga women’s stand on the law was not a feminist ideology but to open doors of opportunity to women to participate along with their male counterparts.