In, inviting your attention to the above referred subject, the Bar begs to lay the following few lines for the kind consideration of the Government.
1. In its meeting held on 17-08-2021, the Bar opined that since the Rules for the Administration of Justice and Police in Nagaland, 1937 covers the administration of customary law, the constitution of Naga Tribunals is unnecessary. In this regard, the Bar resolved to submit a representation to the Government.
2. The Rules of 1937 provides that customary law shall be administered at the Village level and between persons belonging to the same tribe. In the case of disputes between two villages the Rules provide that with the consent of the parties, an attempt should be made to resolve the dispute by a body of elders/ panchayat, appointed by the D.C. Also, the rules are specific in relation to the non- application of customary law to those who are not Nagas.
3. The administration of customary law is through the Village Councils, the Dobashis, the District Administration and Judicial Officers recruited under the Nagaland Judicial Service Rules 2006. Therefore, apart from the authorities empowered by law to adjudicate as courts there can be no other courts or Tribunals.
4. There is much talk about the protection afforded by Article 371 A of the Constitution of India, in relation to the Customary Laws of the Nagas. However, there appears to be a general misconception about the scope of the said Article. At this juncture, it may be appreciated that there are standards for valid customary law such as antiquity, continuity, conformity with public policy and reasonableness. Also, there is a further general principle of law that statutory law overrides customary law unless expressly saved.
5. A reading of the above referred Amendment Act conveys that statutory recognition has been given to the “Tribal Councils”. Section 3 of the said Act states that Tribal Councils means “the various Tribal Councils/Hohos/Unions/Organisations existing in Nagaland”. This definition is open ended. By implication, this Section may be interpreted to include all Tribal Councils/Hohos/Unions / Organisations in Nagaland. The said Section qualifies the meaning of Tribal Councils as “being constituted by the various tribes in accordance with their respective traditions, customary practices and usages”. The recognition of Tribal Councils per se, appears to be innocuous but could lead to complications.
6. In every District, Sub-Division, Area, etc in the State, there is a profusion of Tribal Councils/Hohos/Unions/Organisations. That these bodies should be constituted in accordance with “respective traditions, customary practices” is self contradictory. It may be appreciated that Tribal Councils/Hohos/Unions/Organisations are a relatively new phenomena in Naga society. Also, most of these bodies are either without any Juristic existence and/or they are creatures of statutes. This would mean that the Tribal Councils, etc. are not constituted under “traditions, customary practices and usages”.
7. The Amendment Act of 2009 has also inserted Section 26. By this Section, certain subjects have been listed where the State may seek the assistance of Tribal
Councils /Hohos/Unions/Organisations. This provision has been interpreted by Officers of the State as well as the huge number of Tribal Councils/Hohos/Unions/Organisations to mean the empowerment to function as Courts/Tribunals. This is a patently erroneous interpretation.
8. There has also been much talk about the codification of Customary Laws. This is also related to the constitution of Naga Tribunals .It is the opinion of the Bar that the codification of Customary Laws and the constitution of Naga Tribunals would mean, the demise of Customary Laws. To all affects and purposes, law that is codified becomes statutory law. In our enthusiasm to preserve and protect our customary practices and usages, we should not be the reason for their decimation.
9. In conclusion, the views of the Bar maybe summed up as under:-
a) The Rules of 1937, provides adequate safeguards for Customary Laws. Therefore, that is no need to constitute Naga Tribunals.
b) The Nagaland Village Councils (Fourth Amendment) Act, 2009 is not an enactment for the purposes of conferring Judicial Authority. Consequently, the Amendment Act of 2009, does not confer any sort of judicial authority to the Tribal Councils/ Hohos/ Unions/ Organisations.
c) The State Government must ensure, that those entrusted with the responsibility of administering Customary Laws, have the necessary skill sets.
10. We submit this representation for and on behalf of the people. We are guided in this endeavour by public interest. We trust that the contents of this representation shall be appreciated in its proper perspective.
Tali Ao, President,
V. Hukavi Zhimomi,
General secretary
Leave a Reply