DIMAPUR, SEPTEMBER 30 (MExN): The Dimapur Bar Association (DBA) on Saturday revealed that several provisions in the draft Nagaland Civil Courts Act, 2023 are not only contradictory to the Constitution, but if enacted in its present form, will “dislocate the entire democratic arrangements which are in existence to safeguard the basic democratic organs.”
In a press communiqué, the DBA expressed alarm that a number of provisions/clause/sections and features of the draft Act, is inconsistent and contrary to the Constitution and require prompt and necessary changes/rectification. At the same time, it recommended certain factors which needs due consideration.
In the first, the DBA pointed out that the Articles 233 of the Indian Constitution provides that appointment of district judges, it’s posting and promotions, shall be made by the Governor in consultation with the High Court exercising jurisdiction in relation to such state.
However, the draft Act contradicts this constitutional provision at Paragraphs 4 (3)(i), 5(3)(i) and 6(3)(i), wherein it has been proposed that, “The High Court may in consultation with the state government, appoint to that court one or more judges to be called as Additional District Judges; Additional Civil judges (senior division); Civil Judge (junior division), for such period as is deemed necessary.”
It mentioned that the aforementioned draft provision is also in contradiction with the Nagaland Civil Services Rules 2006, wherein it has been categorically provided that, the District Judges and Additional District Judges are to be appointed by the Governor.
It further stated that the current practice of resorting to recruitment to the post of Additional District Judge and Additional Civil Judge (junior division) and the probation period of two years, are conformed in the judicial services of the state as District Judge or Civil Judge (junior division) as the case may be, so that direct recruitment to the post of District Judge and Civil Judge (junior division) become badly redundant in practice despite the provisions of law.
The DBA also pointed out that the draft Act do not provide essential provisions of pecuniary jurisdiction to the Village Courts, Subordinate District Customary Courts and District Customary Courts.
On this, it viewed that the existence of the DBs court has to be duly acknowledged and a clear definition of their jurisdiction, powers and functions along with the village courts, Subordinate District Customary Courts and District Customary Court has to be incorporated and specifically defined under the draft Act for an effective role in administration of justice.
On customary laws, the DBA said a custom to be enforceable as having the force of law must be a proved custom in accordance of law. An enforceable custom must be a custom which has been in continuous practice since time immemorial. It must also be reasonable and must not be opposite to law, it maintained.
The DBA, therefore, held that only a judicial appointee can rightly adjudicate the enforceability of the custom as having the force of law. The customary court may determine the existence of customs; however, it would not be the proper forum to determine the legality and enforceability of law as the same remain purely within the domain of judicial courts.
Citing instance, it maintained that a party aggrieved and dissatisfied with the decision of the village court or any other court constituted for administration of customary law must have a judicial forum under law for appeal and therefore, a law without any avenue for claims or challenge against the validity of such customary practice before a judicial forum is tantamount to violation of the inherent rights of a party or person.
While highlighting these, the DBA viewed that the draft Act in its present form suffers from “significant loopholes” and therefore requires to be entrusted to a committee comprising prominent lawyers/advocates having reputable standing in subordinate courts along with members having reputable social standing.
The DBA, has therefore, called upon the state government to safeguard the democratic rights and liberties of the people of our state and ensure that the draft Act remain within the ambit of the democratic structure and provisions of our Constitution.
