Our Correspondent
Kohima | August 10
The report of the Commission on Register of Indigenous Inhabitants of Nagaland (RIIN) was tabled in the recently concluded 8th session of the 13th Nagaland Legislative Assembly.
It was laid by Deputy Chief Minister Y Patton in fulfillment of the assurance given on the floor of the House on August 3 in reply to Supplementary Starred Question No. 3 asked by MLA Kuzholuzo Nienu regarding status of RIIN.
The state government notified the decision to set up RIIN vide home department political branch notification dated June 29, 2019 with the objective to prevent issuance of fake Indigenous Inhabitant Certificates.
The notification contained a detailed account of the process and procedure for preparing the said Register, to which various sections of civil society, NGOs and tribal bodies of Nagaland expressed and voiced concerns, views and opinion.
In this regard, the state government held two consultative meetings with all stakeholders on the matter and through these interactions, several pertinent issues were identified, which were felt necessary to be further studied and examined, the report stated.
With this in view, the government constituted a Commission headed by Banuo Z. Jamir as chairperson, to study and examine all issues relating to RIIN and to recommend and advise on the matter.
The Commission was of the view that the assigned task would first require an examination and study of record of government’s policies and instructions on the subject of ‘Indigenous Inhabitant’ and thereby ascertain the probable reasons leading to issuances of fake certificates.
“In view of the tremendous reactions/response to RIIN by various members of the civil society, tribal hohos, NGOs and the political parties, the Commission felt the essential need to interact with as many as many of them as possible,” the report stated.
Adoption
The report stated that in interaction with the groups on the subject of ‘Indigenous inhabitant,’ the Commission also discussed at length the issue of adoption.
Although there is much variance in the customs and traditions of the tribes in the manner in which adoption is practiced, it is apparent that this is common to all of them.
It was also noted that adoption is traditionally confined within members of the family or the clan; adoption of persons outside the village is also practiced but such cases are exceptions rather than the norm.
Considering that adoption has direct implications on issues of inheritance, the practice in most of the tribes was thus found to be insular in nature and questions on hypothetical situations of ‘abandoned infants’ and ‘infants/children of unknown parentages’ could not draw out response, based on actual experience.
The report stated that there was divergence of opinion on whether an adult person could be adopted; the issue concerning the off-springs of women who are abandoned by men/husbands who are non-Nagas/non-tribal was also discussed and although it was not unanimous, it was the general opinion that such children cannot be regarded as ‘indigenous’ and that ‘indigenous’ must necessary be by birth and ancestry (the actual expression used being, “by blood”).
In view of the fact that adoption is generally confined within the family, it was considered a personal affair of the adopting family. Therefore, adoption by a family, by which an indigenous inhabitant certificate is incorrectly issued, resulting in given an undue and undeserved privilege to a person not eligible to enjoy, had not previously impacted the community.
“Such cases had not been regarded to be irregular, either by the community or even the government, as they are not questioned,” it stated.
Changes came about, when objections were raised and the scanner was placed on the community, in regard to selection of candidates for professional/technical studies, against candidates who were alleged/suspended by be adopted, the report stated.
These objections were first made by the NSF and in recent times, by other tribal student bodies. The commission also noted that in the last two (decades) or more, such objections, particularly concerning recruitment by the NPSC have led to litigations in the Court.
As far as records show, the state government does not have a clear-cut policy on adoption, the report stated adding that there being no uniformity in the customs and traditions of the tribes on the matter of adoption.
The Deputy Commissioners were generally expected to deal with such cases, in their respective districts, with due application of mind and with reference to standing instructions.
It is only in the case of adoption of the children of a non-Naga father and of adoption of non-Naga children by Naga parents that some directions were issued.
The P&AR department office memorandum NO.AR-8/8/76 dated 19/01/1979 – indicates that such cases would be examined by the Government on a case to case basis and that Indigenous Inhabitant Certificates should not be issued by the Deputy Commissioners, without the prior approval of the Government.
The report stated that the subsequent office memorandum of the department vide No. RCBT-5/87 (Pt-III) dated 11/06/2012, however categorically states that children of a non- Naga father and non-Naga children adopted by Naga parents should not be issued Scheduled Tribe/Backward Tribe/Indigenous Inhabitant Certificates.
“Despite the variances in costumes and practices on adoption amongst the tribes, this directive of the government- was generally acceptable to the groups. There were however some, who opined that such adopted persons may be given the status of Permanent Resident,” it stated.
Comments of Commission on the findings (Adoption)
In the context of the state of Nagaland, issues of adoption ought to rightly come under the purview of Article 371 A of the Constitution, Section (1) (a) (i) & (ii) “religious or social practices of the Nagas” and “Naga customary laws and procedure”. However, till now, no law has been legislated to regulate adoption.
“Therefore, all cases of adoption do not have the sanction of statutory law,” it stated adding that the cases of adoption by the Naga people are loosely based on customary law, practices and usages.
According to the report, an example may be cited of the absence of an upper age limit for a child/person to be adopted under customary law, whereas, the secular law speaks of adoption in relation only to a child which is defined as ‘ a person who has not completed 18 years of age.”
As gathered from the interactions with the various groups, there is a wide variance in the customs and practices of the tribes on adoption.
Judging by the nature of entitlements granted to an adopted person, it appears that there is also an amorphous overlapping of cases of fostering and of adoption. Sadly, it is noted that some of the ‘fostering’ cases were in actual terms a way to obtain free labour and such persons are not given any due share of anything.
The Commission was aware that a special body has been constituted by the state government to collate the customs and practices of all the tribes in the state including ‘adoption.’
The Commission however felt the necessity to examine the prevailing adoption practices of the tribes, in relation to ‘Indigenous inhabitant,’ as there has been past and present cases of Indigenous Inhabitant Certificate having been issued on the basis of adoption, that have been contested and settled through intervention of the Court.
The Commission noted that there is a growing awareness in the community, of the adverse implications of adoptions that are allowed, without serious consideration.
“This is reflected in their comments and suggestions offered on action that should be taken against persons making false claims, certifying such claims and issuing certificates to persons not eligible/deserving to be granted and who have benefitted from such undue privileges,” it stated.
The report stated that the Commission is sensitive to the fact that concerning adoption, setting side customary traditions is not an option. However, it is felt that certain measures are required to streamline adoption, so that there is more rationale in the way adoptions are considered and aspects of the human rights of the adopted persons are also given due regard.
It appeared to the Commission that adoption cases under customary law are largely left to the discretion of families and clans- while this should not be interfered with, it is felt that there ought to be laid down principles, that should be uniformly applicable, within the village/tribe.
The report stated that the Juvenile Justice (Care and Protection of Children) Act, 2015 leaves room for application of Personal Law. In this regard, there is scope under Article 371A, of framing a law on adoption that is relevant to the socio-cultural milieu of the tribes in the state and at the same time, it would provide the required legal status and sanction for adoption in the state.
The report stated that it was learnt there are many instance of adoptions that have taken place outside the village environment but also not in accordance with the provision of the law, resulting in serious complications.
“In many cases, the biological parents reclaim the child after a gap of years or the adopted child is not taken care of. In the absence of any legal binding in such cases, no action is taken for /against the parties involve- the child as well as adoptive parents,” it stated.
The Commission further learnt that so far, the explanation of customary law under Article 371A in the state is being accepted by the authorities monitoring implementation of the Act, albeit with reluctance.
It will be to the benefit of everyone concerned if a law is enacted, incorporating customary practices as well as meeting the human rights issues related to adoption under the aegis of Article 371A.
“In fact, this is a matter of urgency as the Commission observes that adoption in the state are already taking places under the provision of the juvenile Justice (Care and Protection of Children) Act. 2015. The pertinent aspect relates to the status of the adopted child, who under the Act, as mentioned above “becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child,” the report stated.
With reference to the views expressed by the groups on this matter particularly of children adopted outside the tribal community, very serious debate is required on the issues, so that a clear policy/law can be adopted which is lawful and humane, it stated.
