Nagaland: customary law, customary courts
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Customary law
Constitution of India: Art. 371A
Special provision with respect to the State of Nagaland.
Temporary, transitional and special provisions.
371A. Special provision with respect to the State of Nagaland.-
(1) Notwithstanding anything in this Constitution,-
(a) no Act of Parliament in respect of-
(i) religious or social practices of the Nagas,
(ii) Naga customary law and procedure,
(iii) administration of civil and criminal justice involving decisions according to Naga customary law,
(iv) ownership and transfer of land and its resources,
shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides;
(b) The Governor of Nagaland shall have special responsibility with respect to law and order in the State of Nagaland for so long as in his opinion internal disturbances occurring in the Naga Hills-Tuensang Area immediately before the formation of that State continue therein or in any part thereof and in the discharge of his functions in relation thereto the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken:
Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this sub-clause required to act in the exercise of his individual judgment, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in the exercise of his individual judgment:
Provided further that if the President on receipt of a report from the Governor or otherwise is satisfied that it is no longer necessary for the Governor to have special responsibility with respect to law and order in the State of Nagaland, he may by order direct that the Governor shall cease to have such responsibility with effect from such date as may be specified in the order;
Morung Express’ comprehensive backgrounder
February 23, 2017, What is customary law for the Nagas?, The Morung Express
Once upon a time, a village in Angami country outlawed the consumption of cat meat—albeit delicious, wild cats instilled the right amount of fear in crop-destroying rats. They ought to be left in the wild. The law allowed for people, cats and rats to live happily, in harmony.
Not very far away, in Ao country, technology became a boon and bane. Youth began to use explosives and chemicals to fish, discarding traditional methods that could be slow. Explosives and chemicals were destroying the entire ecosystem. A village council somewhere stepped in—anyone using these harmful fishing methods would be fined generously. An ecological catastrophe was avoided.
These Naga villages exercised their customary laws—clearly defined tenets that differ from village to village and tribe to tribe.
The lack of definition of ‘customary law’ in Article 371-A has created new avenues of conflict in Naga society. So, we ventured out to ask, what are customary laws?
They provide “a model for Naga self governance,” says Shikuto Zalipu, General Secretary of the Nagaland Goan Bura Federation (NGBF).
“In the context of India it is the law which has not been made by the legislature but is recognized by the community. It is similar to the situation of the recognition of customary law of indigenous peoples in Australia and Canada,” explains Nandita Haksar, a human rights lawyer, teacher, campaigner and writer.
The Supreme Court of India recognizes that there are “areas of life” (marriage, inheritance etc.) that are governed by customary law; international law also recognizes some aspects of customary laws, particularly of indigenous peoples, “but only if the customary law does not violate the tenets of international human rights law,” she notes.
“Reality,” she adds, however, “is far more complex.”
Tradition and Customary Laws
There is a difference between tradition and customary laws, for instance, says Dr. Visier Sanyü, academic and author while explaining this complexity. In his village, it was not “traditional” for women to go to school or carry an AK-47 but that changed with circumstances.
Customary Laws of the village, on the other hand, did not change quite so easily given the socio-economic rationale on which they are based, much like driving laws that help ensure survival.
Practiced long enough, traditions begin to influence customary laws, according to Dr. Sanyü.
However, these concepts continue to be used interchangeably in common parlance, observes Prof. Temsula Ao, Chairperson of the Nagaland State Women’s Commission.
Much like tradition, “customary laws are always evolving,” she says. “Customary Laws help tackle problems in the society which is why they change with changing circumstance. It is not a static set of rules.”
Today, paying five cows as fine for a crime is not possible everywhere compelling its substitution with a hefty cash fine, cites Akang Ao, former principal of Kohima Law College.
“Naga Customary Laws follow precedent, much like any other law. Changes are thus dynamic, and if there is one progressive village that sets a new precedent, others may follow suit,” he reflects.
Due Process
Much like State laws, Naga customary laws follow some form of ‘due process’. The Gaon Buras (GBs) as “custodians” of Naga customary law are part of village councils, alongside a nominee from every village clan—all male—that administer justice at the grassroots level. They are joined by Dobashis (DBs, or erstwhile interpreters for the British government) at the urban and district level to “administer justice.” They hear the cases brought to them, look at available evidence, discuss the matter jury style and then pronounce judgment as per customary laws and its precedents. While this used to be all oral “back then,” many villages have started to keep case records today.
If judgments are found unsatisfactory, the cases are appealed, with sanction of the village council, to tribal councils (various tribal Hohos) or even State higher courts like district cum sessions’ court, high court or the Supreme Court. Sometimes cases are even sent back from State courts to customary courts for resolution. The basis for administration of justice, or the values on which each court is based, however differs, giving rise to unique problems.
“If, say, there is a land dispute, customary laws allow for arbitration, offering both compensation and demarcation. Since the customary court is a channel of agreement, both parties partake in arriving at a compromise. Judgments are rare, and so are appeals,” explains a senior policing officer, requesting anonymity. With an ‘agreement’ based model, Naga people prefer to go to customary courts than “get stuck in endless rounds” of the State judicial system, he notes.
However, if appeals are to be made, say, in a murder case brought to the customary court but obviously cannot be arbitrated, matters become murkier.
Much of the provisions for administration of justice are mentioned in the 16-point agreement but Article 371-A, the legal element of the political agreement, stays mum on these aspects, thus becoming the crux of confusion.
“70-80 percent of cases at the grassroots are resolved through customary courts,” informs Shikuto Zalipu based on his experience. Even at the district level, people most often approach the district administration, which forwards the case to the Dobashi Court depending on its nature. Land disputes, divorce, theft may go to the DB court but an FIR may be filed in a murder case. These decisions follow no precise guidelines and are often a “matter of convenience” for parties involved, says the police officer. It creates a “conflict of law” says Phutoli Chingmak, a legal researcher. “Customary Laws cater to the unique situation of the people here in their context and it is developed by consensus. That is not the case with State laws which creates great confusion for lawmakers. We need to find a method for harmony between the two,” the police officer asserts.
According to Zalipu, “deviation” from the 16-point agreement and “imposition” of the Indian legal system is what created the “confusion.” While most of the administration of customary justice carries on without State support, people remain confused about what case to take to which kind of court. Justice is often sacrificed at this altar.
Local Self Governance
Once upon a time, each village had to plan out its own survival method. “Since the village council was drawn from a representative of each clan, customary laws were honourably used,” says Akang Ao.
In the scheme of local self governance, “individual interest must be subsumed for the village interest,” explains Prof. Temsula Ao about the tenets on which the customary legal system is based. A well developed system of “human resource management” allowed for labour division in her community that went in conjunction with laws.
Society was segregated along age lines as well as gender lines. Men became direct inheritors of knowledge and political practice by being allowed to customary courts and village councils. In many places it is taboo for women to even enter a customary court, informs Phutoli Chingmak. But the scenario of the past has changed considerably with young people leaving villages for work or study; the village headman’s position that used to be hereditary (patrilineal) in majority of the cases, is at times replaced by political appointments today. Customary Laws have, at times, kept up with changes but many times not.
Having been instated since “time immemorial,” even though the people have faith in the customary courts, “the element of natural justice has been missing,” says Nino Iralu from the Nagaland Legal Services Authority (NLSA) of modern customary law. So, in many villages when women face domestic abuse, for instance, they have to either keep quiet in order to “save face” or make a complaint through a brother who will then “resolve” the matter within the family or clan (there are family courts to resolve divorce cases too). Even if the matter goes to a customary court, no woman will hear the matter as women cannot “traditionally” be GBs or DBs.
When there is a violation of customary laws, the village council decides on the matter—with clan based male representation, the “voice of the people” becomes the law, or even more powerful, notes Dr. Visier Sanyü. Today, the interpretation of ‘customary law’ is hinged on “power and public opinion,” and if an all powerful organization decides to interpret it in anyway, then it stays that way.
Village Councils have the power to legislate and execute customary laws, says Phutoli Chingmak.
“In this case, customary laws can be misused to some extent” and justice denied, noted Iralu. NLSA thus works in all of Nagaland’s districts to “sensitize” people to bring “serious” offenses like violence against women or murder to State courts.
On the other hand, only those with enough money can approach the ‘Indian legal system’ for justice, highlights Shikuto Zalipu.
What of justice then?
According to Phutoli Chingmak, “if you only stick to precedents set 100-200 years ago, how will you evolve?” And without evolving through frameworks such as human rights and equity, customary laws will eventually phase out.
To this, Zalipu notes that “Since the coming of Christianity, many old Naga customs have changed; old ones have been discarded and new ones taken over.” Change becomes necessary for all laws to flourish and flower. “Awareness of our present situation is critical for customary law to flourish,” says Akang Ao.
A Naga Tribunal?
One possibility for change is for Nagaland to have its own constitution—guidelines laid out for what falls under the spectrum of customary laws and remedies available, suggests Dr. Visier Sanyü.
This can be no easy task given the variety of customary laws among the Naga peoples. Dr. Sanyü acknowledges this dilemma and notes, “Writing oral laws down may create more confusion so it will need scientists, anthropologists, lawyers etc. to prepare such a document.”
Akang Ao agrees. “It is time that the Nagaland Legislative Assembly (NLA) make a uniform set of rules and enact them to accommodate the changing nature of society,” he notes.
Shikuto Zalipu provides the anchor—the 16 point agreement. Its points 8 and 9 lay out the details of local self government and administration of justice respectively—points that fail to appear on Article 371-A, a legal provision that ought to be read in conjunction with the 16 point agreement.
‘Local Self-Government’ offers that each tribe shall have a village council, range council (abolished) and tribal council to make rules and deal with matters concerning the respective tribes. Read alongside point 9 (b)(ii), the local councils can follow a continuum in matters of justice by approaching a “Naga Tribunal (for the whole of Nagaland) in respect of cases decided according to customary law.”
This offers an option for having an apex ‘customary law’ body that could standardize practice of the laws—where applicable, where not—as well as look into amendments, while relieving the NLA of judicial responsibility, making each independent of the other—philosophically and in practice.
The senior police official is, however, skeptical. “It will be difficult. There are many similarities between different customary laws but unique practices in different regions have led to unique laws which will be difficult to bring under an umbrella,” he feels during the course of discussion, albeit promising to think more about the provision.
And what of inclusion? While it is traditional to exclude women from customary arbitration, women have proved their mantle in the practice of law through the State legal and judicial systems. Why not help upgrade customary law as a collective gender effort then? Why not women GBs and DBs?
“That you have to ask the men,” says Prof. Ao, hinting at how much of this hinges on the “voice of the people.”
According to scholar Dr. Dolly Kikon, “If Naga customary law is seen as the foundation of justice, the exclusion of women from these powerful decision making-bodies negates the entire notion that these are pillars of justice.”
“The change has to begin with tribes bringing women into tribal councils,” says the police official. In his opinion, villages or a bigger Naga Tribunal will not accept inclusion, particularly due to the powerful influence of tribe based organizations.
Phutoli Chingmak concurs and suggests that a discussion and dialogue is necessary within each tribe to negotiate the evolutionary changes to be brought to customary laws in each region—this can be facilitated by the Nagaland State Government.
“We have to find a point of reconciliation through a two pronged approach—from top-down, bottom-up as well as between genders,” she asserts, maintaining that the collective wisdom of both men and women can lead to “mutually decided” changes towards a shared future. Bringing a Tribunal without the grassroots evolution would be like building a skyscraper without a foundation.
While this may be an uphill climb for Naga society as a whole, the fruits derived thus may be a small step towards transforming a source of conflict into the community’s life force.
Rules for administration of justice and police in Nagaland
[ The Times of India]
