Sedevi Angami
Dimapur
I have been struggling with the understanding of Naga customary law. I have also been trying to read as much about it. On several discussions with lawyers and sociologists, the same issues pop up.
• It is not codified and difficult to do so.
• It is very heterogenous – varies from tribe to tribe and village to village
• To get a unified homogenous, user friendly and just law that is acceptable to all sections of Naga society is a huge task
• There are good possibilities of it being biased and subjective.
We all understand the benefits of customary law as well as the problems with it. If we have lived for a reasonable time in Nagaland, we have been affected or benefited from it sometime or the other.
The Indian legal system can be expensive, exhausting, difficult to access or the proceedings gets prolonged indefinitely at times. It is coded, comprehensive, objective, rational and time tested. However, like any man made system, it is not foolproof and can be manipulated by the rich and powerful.
The customary law practices are more accessible, user friendly, less expensive and rapid in dispensation of justice. On several occasions, it has protected us from being overrun by the mainland. However, it is also not foolproof and can be manipulated or biased and subjective. It is not comprehensive enough and open to a wide range of interpretation due to its oral nature of transmission.
The questions that arise are
• Shouldn’t any law be codified and standardized?
• Who is the guardian/ custodian of Customary law?
• What is the court of appeal when we feel that some injusticehas been dispensed by customary courts?
• What is the jurisdiction of customary law? Does it cover everything that Naga society undergoes? What does it not cover? What is the geographical area of coverage? Can my village law cover me if I live in Dimapur or in Shillong?
• What is the training provided to the guardians of customary law? Is there a standard curriculum for training like the LLB or LLM? Is training necessary at all?
• If it is transmitted by word of mouth, could there be a mis-transmission in the process. How do we safeguard against this?
• Is the customary law infallible? Where are the gaps in the customary law?
• Is customary law always just?
• Is it biased towards a particular gender and unfair towards another?
• Can it be amended in times to come or do we continue with it 200 years from now? Naga society is fast changing. Would my great great grandfather’s wisdom in his original context be relevant to us in a globalized, different world 50 years from now?
• What is the process of amendment? Who should amend it?
• When is a good time to get it amended and under what circumstances should this be done? What should the process of amendment look like?
• What is the criteria for excommunication? Who has the right to excommunicate? Village chief/council or Tribal Hoho?
• What is range of issues for which a person should be excommunicated. Would it be adultery, drug peddling, murder, deceit, theft, marrying out of the clan’s norms, refusal to vote for the village choice for a certain candidate or just being antiestablishment? Is there a role for a difference of opinion and freedom of speech under customary law? Do we all have to conform compulsorily?
• In olden times, Naga villages were sovereign, fiercely independent and did not come under any other authority. We did not have towns. Tribes were not aggregated together under one group/ Hoho. Can the tribal Hoho now take authority over the village council? With the bewildering present number of organizations coming up, who really represents the Nagas?
• In Naga Christian society, would some of the customary laws actually be against Christian principles?
• Naga society is still partly animistic though a very small minority. Can customary law be recreated in a way that is comprehensive and covers both groups of people?
• When do we apply customary law and when do we apply the Indian legal system? Is there a role for having a hybrid system that is unique for Naga society?
• What has happened to other cultures around the world who have customary law? Do they retain and hold on to it in its original form or do they also adapt and evolve in their customary laws?
The number of questions are many and will continue. I am sure others will have several more unanswered questions to ask.
Most folks I have met agree that there needs to be some sort of codification and standardization required. The status quo cannot continue. There has to be courage to face this head on and take up the challenge of restructuring customary law.
Customary law has a lot of good useful stuff, which should not be thrown away.
The issue is who should take up the task of restructuring customary law in a way that is acceptable, just, objective and comprehensive. Should it be a combination of the Church, expert lawyers, anthropologists, researchers and sociologists?I do not know. My suggestion is if the Bar association of Nagaland or the church initiate the process, that would be a starter. Finally, the Government of the day needs to take responsibility.
I would suggest that an expert group initiated by the Government composed of Naga scholars – both within and abroad, credible intellectuals, lawyers, Church, sociologists start the process by recording the spectrum of customary law across Naga society, tribes and villages.
They can then draft an initial document and invite debate or opinions from Naga society before finalizing on a proper codified standard.
The task will be huge and so if they could start by at least embarking on 10 most contentious issues in Naga society today, that would be a beginning.
Not to do so would be postponing inevitable future chaos. Especially when the present generation of experts in customary law have moved on.
