sujithxavier TWAILR: Reflections

Custom, Lineage, and Tribal Identity in India’s Northeast

Reeju Ray examines how colonial legacies persist in governing Indigenous women’s lives in post-colonial states like Meghalaya, India. By analysing the Khasi Custom of Lineage Act, Ray highlights Indigenous women’s struggles against institutional patriarchy and their diverse forms of resistance.

TWAILR: Reflections ~ 60/2024

This essay provides an example of the reconstitution of customary laws and minority governance in India with a focus on the northeastern borderland state of Meghalaya. In 1972, the Khasi, Jaintia, and Garo hill areas of the erstwhile colonial frontier ceded from the Indian state of Assam to form the state of Meghalaya. The Sixth Schedule in the Constitution of India contains provisions for the protection of land rights and customary laws of tribal communities in Meghalaya and other northeastern states.1 The operation of the Sixth Schedule through the Autonomous District Councils (ADCs) subsumes individual as well as constitutional rights of citizens within collective rights given to the tribal communities. This is not unique because personal laws in India work through the same logic. This reflection shows the way in which ADCs circumscribe the rights of the people they govern, particularly through the reconstitution of gendered rights. It highlights debates intersecting customary law, tribal identity, and gendered citizenship rights in Meghalaya with a focus on the Khasi Custom of Lineage Act 2005 (Lineage Act) and Lineage Amendment Bill (LAB) 2018 brought into force by the Khasi Hills ADC.2 I argue that implicit in the co-constitutive and multivalent discourses on tribal ethnicity in Meghalaya is a heteronormative, patriarchal framing of the rights of a community in opposition to injustices against women within the group.3 This blog addresses preliminary research questions emanating from a larger project on custom, minority governance, and tribal identity. The ongoing project problematizes the discursive emphasis on “global indigeneity” in recent scholarship, as well as the assumptions underlying Hindutva efforts to homogenize tribal communities in India.4

At independence from British colonial rule in 1947, the Indian state inherited a legal ordering of spaces and people that took shape during the 19th century. The spatial legal category of hill tribal was introduced in the early nineteenth century, marking a differentiated legal order in frontier areas of British India.5 During the nineteenth century, the words Khasi, Jaintia, and Garo came to denote both hills and tribal inhabitants in the colonial frontier of British Bengal. Colonial governance through law formulated the hills as frontier and its inhabitants as tribal. Autonomous polities adjacent to British territories in Bengal were accessible through signing legal contracts with rulers and extraterritorial jurisdiction. Classifications such as hill tribal and cultivator subject (caste communities of Bengal) marked differences between productive revenue-yielding subjects and communities with non-revenue-yielding power.  The category of scheduled tribe and legal zones, defined as scheduled areas, have clear colonial roots. Along with the introduction of missionary education and writing culture, the social and legal-customary space of the frontier hills became reconstituted through a male and patriarchal voice. Spatial reconstitution and legal exceptionalism were undercurrents defining and shaping gender norms through the nineteenth century. Therefore, the customary proscriptions laying out the non-participation of Khasi women in the public sphere and the judicial councils or darbars led by Chiefs or Syiems cannot be understood simply as customary relics of a pre-colonial past.

One of the biggest challenges faced by the women’s movement in India has been articulating gendered rights at the interface of national and community identities. Scholars have pointed out the significant shifts in the demands formulated by the women’s movement and its diverse composition, enabling a rethinking of the nation as a homogenous entity and the legitimacy of the state as the harbinger of reform.6 The feminist articulation of challenges against the patriarchal, neoliberal, and reformist state in Meghalaya is visible in ongoing struggles led by women around the intersecting poles of place-based politics, including the body, home, livelihood, and environment. The resistance to the Khasi Custom of Lineage Act discussed here is one manifestation of this politics. In the following section, I will elaborate upon the context in which the Lineage Act 2005 came into being and the accompanying resistance to it. Through this law, the Khasi Autonomous District Council (KHADC) circumscribes Khasi ethnicity and indigeneity as a highly regulated identity firmly embedded in colonial roots. The research raises questions about the related yet different registers of ethnicity as lineage/kinship and indigeneity as land rights/spatiality. Here, I present preliminary observations and ideas that I will develop further in the larger project, which traces the evolution of layered jurisdiction and exceptional laws for minority governance in colonial and postcolonial India.

Matriliny and the Invention of Custom

The Khasi Custom of Lineage Act 2005 (Lineage Act) provoked a lot of disagreements, debates, and protests. His Lineage Act was passed after almost a decade of deliberations and revisions of the original Bill introduced in 1997. The crux of the Act is this: any Khasi woman who marries a non-Khasi, as well as her children from such marriages, will be stripped of their indigenous Khasi status. Thus, they will be deprived of legal privileges as a member of a Khasi community. This includes matrilineal descent and inheritance and corresponding constitutional guarantees, including those provided by the Sixth Schedule. First introduced by the KHADC, the Bill attacked the basis of the matrilineal system of kinship in the guise of its codification. It sought to weaken customary practices of matrilineal kinship and concomitantly strengthen male authority and patriarchal power in Khasi society.7 The KHADC members introduced a set of proposed reforms which imposed severe restrictions on women by controlling their sexual choices and right of descent. The law placed the specific onus of maintaining or preserving Khasi ethnic identity on women.

The law reinforced two sets of highly problematic demands by a section of Khasi civil society. One is that children of mixed marriages (Khasi mothers and non-Khasi fathers) are at risk of losing their ethnic status, privileges of matrilineal descent and inheritance. Relatedly, the Council members pushing the law highlighted the exploitation of Khasi women by non-Khasi men for the latter’s property rights. Visible in these discussions is the notion that women are repositories of ethnicity through their biological reproductive capacity. Legislators of KHADC and their supporters amplified concerns of demographic obliteration of pakka or pure Khasis due to the increase of mixed blood progeny.8 

In this way, KHADC’s Lineage Act circumscribed the biological and cultural reproductive role of women by co-constituting ethnicity, indigeneity, and matrilineal descent. Community identity is guaranteed through this law only if women behave and act in particular ways. Her choices to love, marry, or choose a sexual partner are thus circumscribed by this legislation. Through this law, the KHADC maintains its control over marriage, inheritance, and identity. The Lineage Act formulates women as repositories of ethnic identity and imposes on them the role of ethnic border guards, thereby creating a renegotiated subject-citizen of the Indian state. Further, by placing the reproduction of children as coterminous to the reproduction of culture, this law circumscribes kinship as a heteronormative principle.

Community identity is guaranteed through this law only if women behave and act in particular ways. Her choices to love, marry, or choose a sexual partner are thus circumscribed by this legislation.

Following over two decades of public debate, protests and counter-protests, amendments were made to the Lineage Act in 2018 that further reinforced patriarchal authority. A Tribunal on Khasi Social Custom of Lineage was instituted with the power to adjudicate matters related to customs of lineage. The amendment introduced further punitive measures against mixed marriages. The 2018 amendment underlines surveillance and punishment against individuals who violate the law, including those who do not report or misinform regarding their mixed marriage. The punishment for transgressive individuals would not only amount to losing their social and ethnic identity but the imprisonment of one to three years with a fine of rupees twenty thousand up to rupees one lakh.

Since the publication of the draft bill and the enactment of the law, diverse voices of protest have emerged. The array of responses and positions regarding the Lineage Act challenge any presumptions about homogenous tribal or indigenous politics in these borderlands. The ongoing debate demonstrates intersecting concerns of national and international legal significance. In a letter to the governor of Meghalaya, petitioners stated their objection to the 2018 amendment. Petitioners included the Chairperson of the Meghalaya State Commission for Women and important journalists and activists, including Patricia Mukhim, Agnes Kharshïing, and Angela Rangad, among others. They argue that existing laws to protect indigenous land rights and curb economic exploitation are not implemented. Constitutional and statutory legislations can comprehensively address the key issue of land dispossession among matrilineal communities, which KHADC legislators highlight to justify further amendments to the Lineage Act. An important fact that remains sidelined in the discussion on lineage and land rights is the large percentage of women who are landless. The primary justification of the Lineage Act has been to protect the land rights through inheritance, which are at risk due to mixed marriages. Rangad has pointed out on several occasions that there are laws to prevent tribal land alienation and illegal sales such as the Benami Act.9 However, the dispossession of land among the larger population in Meghalaya sharply contrasts with the ownership of extremely large landholdings of private individuals from the State. This begs the question, when there is no land to inherit for the majority of the state’s population, what does the control of women’s marriage and attack on her indigenous identity really mean?

Petitioners, including prominent civil rights activists, highlight that the law and its amendment is a violation of women’s rights and an attempt to impose gender discrimination and patriarchal norms in a matrilineal society. The issuance of a Khasi certificate only after producing documentation, court appearances, and interviews is unconstitutional, and KHADC’s emphasis on racial bloodlines is deeply problematic, racist, and uncustomary. Patricia Mukhim, one of the petitioners and a prominent journalist, pointed out that the same groups that support the Lineage Act and its punitive amendments also demand policies such as the National Registry of Citizens (NRC) to be implemented in Meghalaya. The implementation of the NRC has had a devastating impact on the neighbouring state of Assam. The policy is meant to weed out undocumented immigrants, mostly from Bangladesh, who entered Assam after the Bangladesh War of 1971.10 The spectre of an illegal immigrant marrying tribal women has been popularized by anti-matriline and anti-immigrant groups. Therefore, there are significant overlaps between national anti-immigrant policies, such as the NRC, and regional customary inventions, such as the Lineage Act. Yet, the fact remains many undocumented migrants are engaged by local contractors in industries like mining, construction, and factories as cheap labour in Meghalaya.

Feminists in Meghalaya like Angela Rangad and Agnes Kharshiing, through their activism over decades, have charted the intersections between patriarchal interests and those engaged in capitalist resource extraction. Within the context of matrilineal land rights, it is not surprising that women have taken leadership roles in opposing the unconstitutional reinvention of custom and cultural homogenization. Such political articulations are also found in anti-mining protests and movements for livelihood rights, ecological rights, queer rights.11 These interrelated movements and political articulations challenge dominant and masculinist constructions of Khasi ethnicity or community identity as exclusionary and culturally deterministic. The everyday life, resistance, and subjecthood of Khasi women map on to the thematic concerns repeatedly attended to by Feminist TWAIL approaches – namely those of colonial ontology, gendered (postcolonial) statehood, and reclaiming indigeneity. The spatiality of law visible in the gendered frameworks of ethnicity, anti-migrant policies, and deployment of custom in Meghalaya raises important questions for TWAIL and critical international legal theory. Drawing from feminist TWAIL approaches this ongoing research will interrogate how custom and law operate as a locus of struggle for livelihood rights, indigenous rights, and women’s rights.

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  1. The states where the Sixth Schedule of the Indian Constitution applies are Assam, Meghalaya, Tripura, and Mizoram in Northeast India.
  2. This legislation has been examined in a recent essay with a focus on questions of indigenous sovereignty. While the position taken in this essay resonates with the arguments, the approach and research question differ. See Maranatha Wahlang and Bengt G. Karlsson. ‘The Body of the Land: Women, Ethnicity, and Alter-Politics’, in Jelle J.P. Wouters (ed.), Vernacular Politics in Northeast India: Democracy, Ethnicity, and Indigeneity. (Oxford University Press, 2022).
  3. The ADCs are empowered to preserve and protect customary laws and land rights of tribal communities. The caste communities living in states under the Sixth Schedule are not governed by ADCs.
  4. See Arkotong Longkumer, The Greater India Experiment: Hindutva and the Northeast (Stanford: Stanford University Press, 2020).
  5. I have explored the production of tribe as a spatio-legal classificatory category from the late 18th century onwards through processes of law and border making and knowledge production. See Reeju Ray, Placing the Frontier in British Northeast India: Law, Custom, and Knowledge (Oxford University Press, 2003).
  6. See Hoineilhing Sitlhou, (ed.)  Identity and Marginality in Northeast India: Challenges for Social Science Research, (Orient Blackswan, 2023); Ratna Kapur & Brenda Cossman, ‘Subversive Sites 20 Years Later: Rethinking Feminist Engagements with Law’, (2018) 44:2 Australian Feminist Law Journal, at 265-287; Nivedita Menon, ‘A Uniform Civil Code in India: The State of the Debate in 2014’ (2014) 40:2 Feminist Studies, at 480–486; Rajeswari Sunder Rajan, The Scandal of the State: Women, Law, and Citizenship in Postcolonial India (Duke University Press, 2003.); Tanika Sarkar, Hindu Wife, Hindu Nation: Community, Religion, and Cultural Nationalism (Permanent Black, 2001); Papori Bora, ‘Between the Human, the Citizen and the Tribal: Reading Feminist Politics in India’s Northeast.’ (2010) 12:3-4 International Feminist Journal of Politics, at 341–360; G. Arunima, There comes Papa: Colonialism and the Transformation of matriliny in Kerala, Malabar, c.1850-1940 (Orient Longman, 2003).
  7. Tiplut Nongbri, ‘Khasi Women and Matriliny, Transformation of Gender Relations’,(2000)4:3Gender Technology and Development, at 359-395.
  8. For a historical context of the debates See Nongbri (2000); For recent debates on the issue see Patricia Mukhim ‘KHADC: Why Trample on Women’s Rights?’, The Shillong Times (1 September  2023) https://theshillongtimes.com/2023/09/01/khadc-why-trample-on-womens-constitutional-rights/ (accessed 10 October 2023) Response by Kitdor Blah, ‘KHADC and Women’s Rights’, The Shillong Times (5 September 2023) https://theshillongtimes.com/2023/09/05/khadc-womens-rights/. (accessed 10 October 2023).
  9. ‘Meghalaya | Women activists ask Governor not to approve of Lineage Bill in letter’, The North East Star (31 July 2018) https://thenortheasttoday.com/states/meghalaya/meghalaya-women-activists-ask-governor-not-to-approve-of/cid2543838.htm (accessed 10 December 2023).
  10. The emphasis on documentation has led to thousands of people being declared illegal, many languishing in detention centers, and many being forcefully evicted from their homes and even killed.
  11. See Wahlang and Karlsson (2022); also see Reeju Ray, ‘Street Vendors and Public Spaces in Shillong’, Raiot (5 December 2017) https://raiot.in/street-vendors-and-the-right-to-the-city/ , Reeju Ray, ‘Home Coming: A Queer History’ in Janice Pariat ed. We Come from Mist: Writings from Meghalaya (Zubaan Publications, 2023).