In yet another instance of rape, a six year old girl was raped by a 25 year old man at Mon town recently. The Konyak Mothers’ Association (KNSK) has reportedly insisted that the case be referred to a government court rather than allowing it to be taken up under customary law as is the norm. There are obvious concerns that the accused may be awarded a ‘soft punishment’. The KNSK is reportedly of the conviction that once the case is handed over to a customary court, the perpetrator may be let off loosely. The Grace Khing rape incident where the case was reportedly settled for a meager sum of Rs 1500 is another instance which puts a serious question mark on the credibility of our justice dispensing system. Reports have indicated that many such cases earlier forwarded to customary courts had not yielded positive outcomes in favour of the victimized. This goes to show that the traditional customary laws have not been able to develop effective responses to crime of the magnitude such as rape that has developed in recent times. With the changing nature of crime and violence and the concerns that most customary laws do not address them in a way it should be done, there is no reason why mainstream law should not play a part in addressing such cases of rape.
The demand of the Konyak Mothers to access the mainstream legal system for the sexual assault on a minor girl only goes to show that they have lost faith in the old ways of dispensing justice. Their message, if it is being understood correctly, is that sexual assault is “non-negotiable” as an offence. Customary law may tend to emphasize the position of the community rather than the rights of the individual and in the process compromises are made. In the long run, this will only perpetuate crime against the disadvantaged and vulnerable sections such as women and children.
This should however not be used as an excuse by governments to avoid recognizing the validity of customary law. One possible approach is to limit the cases in which Customary Law will apply. For example, mainstream law could apply to crimes such as rape, sexual assault or murder. Another possible approach would be to create a mechanism where Customary Law is applied in the first instance, with access to mainstream law used as a last resort. This would give communities the opportunity to resolve issues using Customary Law, while providing women with a safeguard.
Modern development is inconceivable without the evolution of an integrated modern legal framework and the faster the Nagas realize this, the better it would be in the long run. A bridge between customary and modern law must be found eventually which will ensure that customary law achieves a balance between cultural values and gender equality. The challenge is to find ways of codifying new and workable forms of customary law that meet the needs of changing circumstances, but retain some of the older and positive values.
