Nagaland: customary law, customary courts
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Customary law
Constitution of India: Art. 371A
Special provision with respect to the State of Nagaland.
Temporary, transitional and special provisions.
371A. Special provision with respect to the State of Nagaland.-
(1) Notwithstanding anything in this Constitution,-
(a) no Act of Parliament in respect of-
(i) religious or social practices of the Nagas,
(ii) Naga customary law and procedure,
(iii) administration of civil and criminal justice involving decisions according to Naga customary law,
(iv) ownership and transfer of land and its resources,
shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides;
(b) The Governor of Nagaland shall have special responsibility with respect to law and order in the State of Nagaland for so long as in his opinion internal disturbances occurring in the Naga Hills-Tuensang Area immediately before the formation of that State continue therein or in any part thereof and in the discharge of his functions in relation thereto the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken:
Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this sub-clause required to act in the exercise of his individual judgment, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in the exercise of his individual judgment:
Provided further that if the President on receipt of a report from the Governor or otherwise is satisfied that it is no longer necessary for the Governor to have special responsibility with respect to law and order in the State of Nagaland, he may by order direct that the Governor shall cease to have such responsibility with effect from such date as may be specified in the order;
Morung Express’ comprehensive backgrounder
February 23, 2017, What is customary law for the Nagas?, The Morung Express
Once upon a time, a village in Angami country outlawed the consumption of cat meat—albeit delicious, wild cats instilled the right amount of fear in crop-destroying rats. They ought to be left in the wild. The law allowed for people, cats and rats to live happily, in harmony.
Not very far away, in Ao country, technology became a boon and bane. Youth began to use explosives and chemicals to fish, discarding traditional methods that could be slow. Explosives and chemicals were destroying the entire ecosystem. A village council somewhere stepped in—anyone using these harmful fishing methods would be fined generously. An ecological catastrophe was avoided.
These Naga villages exercised their customary laws—clearly defined tenets that differ from village to village and tribe to tribe.
The lack of definition of ‘customary law’ in Article 371-A has created new avenues of conflict in Naga society. So, we ventured out to ask, what are customary laws?
They provide “a model for Naga self governance,” says Shikuto Zalipu, General Secretary of the Nagaland Goan Bura Federation (NGBF).
“In the context of India it is the law which has not been made by the legislature but is recognized by the community. It is similar to the situation of the recognition of customary law of indigenous peoples in Australia and Canada,” explains Nandita Haksar, a human rights lawyer, teacher, campaigner and writer.
The Supreme Court of India recognizes that there are “areas of life” (marriage, inheritance etc.) that are governed by customary law; international law also recognizes some aspects of customary laws, particularly of indigenous peoples, “but only if the customary law does not violate the tenets of international human rights law,” she notes.
“Reality,” she adds, however, “is far more complex.”
Tradition and Customary Laws
There is a difference between tradition and customary laws, for instance, says Dr. Visier Sanyü, academic and author while explaining this complexity. In his village, it was not “traditional” for women to go to school or carry an AK-47 but that changed with circumstances.
Customary Laws of the village, on the other hand, did not change quite so easily given the socio-economic rationale on which they are based, much like driving laws that help ensure survival.
Practiced long enough, traditions begin to influence customary laws, according to Dr. Sanyü.
However, these concepts continue to be used interchangeably in common parlance, observes Prof. Temsula Ao, Chairperson of the Nagaland State Women’s Commission.
Much like tradition, “customary laws are always evolving,” she says. “Customary Laws help tackle problems in the society which is why they change with changing circumstance. It is not a static set of rules.”
Today, paying five cows as fine for a crime is not possible everywhere compelling its substitution with a hefty cash fine, cites Akang Ao, former principal of Kohima Law College.
“Naga Customary Laws follow precedent, much like any other law. Changes are thus dynamic, and if there is one progressive village that sets a new precedent, others may follow suit,” he reflects.
Due Process
Much like State laws, Naga customary laws follow some form of ‘due process’. The Gaon Buras (GBs) as “custodians” of Naga customary law are part of village councils, alongside a nominee from every village clan—all male—that administer justice at the grassroots level. They are joined by Dobashis (DBs, or erstwhile interpreters for the British government) at the urban and district level to “administer justice.” They hear the cases brought to them, look at available evidence, discuss the matter jury style and then pronounce judgment as per customary laws and its precedents. While this used to be all oral “back then,” many villages have started to keep case records today.
If judgments are found unsatisfactory, the cases are appealed, with sanction of the village council, to tribal councils (various tribal Hohos) or even State higher courts like district cum sessions’ court, high court or the Supreme Court. Sometimes cases are even sent back from State courts to customary courts for resolution. The basis for administration of justice, or the values on which each court is based, however differs, giving rise to unique problems.
“If, say, there is a land dispute, customary laws allow for arbitration, offering both compensation and demarcation. Since the customary court is a channel of agreement, both parties partake in arriving at a compromise. Judgments are rare, and so are appeals,” explains a senior policing officer, requesting anonymity. With an ‘agreement’ based model, Naga people prefer to go to customary courts than “get stuck in endless rounds” of the State judicial system, he notes.
However, if appeals are to be made, say, in a murder case brought to the customary court but obviously cannot be arbitrated, matters become murkier.
Much of the provisions for administration of justice are mentioned in the 16-point agreement but Article 371-A, the legal element of the political agreement, stays mum on these aspects, thus becoming the crux of confusion.
“70-80 percent of cases at the grassroots are resolved through customary courts,” informs Shikuto Zalipu based on his experience. Even at the district level, people most often approach the district administration, which forwards the case to the Dobashi Court depending on its nature. Land disputes, divorce, theft may go to the DB court but an FIR may be filed in a murder case. These decisions follow no precise guidelines and are often a “matter of convenience” for parties involved, says the police officer. It creates a “conflict of law” says Phutoli Chingmak, a legal researcher. “Customary Laws cater to the unique situation of the people here in their context and it is developed by consensus. That is not the case with State laws which creates great confusion for lawmakers. We need to find a method for harmony between the two,” the police officer asserts.
According to Zalipu, “deviation” from the 16-point agreement and “imposition” of the Indian legal system is what created the “confusion.” While most of the administration of customary justice carries on without State support, people remain confused about what case to take to which kind of court. Justice is often sacrificed at this altar.
Local Self Governance
Once upon a time, each village had to plan out its own survival method. “Since the village council was drawn from a representative of each clan, customary laws were honourably used,” says Akang Ao.
In the scheme of local self governance, “individual interest must be subsumed for the village interest,” explains Prof. Temsula Ao about the tenets on which the customary legal system is based. A well developed system of “human resource management” allowed for labour division in her community that went in conjunction with laws.
Society was segregated along age lines as well as gender lines. Men became direct inheritors of knowledge and political practice by being allowed to customary courts and village councils. In many places it is taboo for women to even enter a customary court, informs Phutoli Chingmak. But the scenario of the past has changed considerably with young people leaving villages for work or study; the village headman’s position that used to be hereditary (patrilineal) in majority of the cases, is at times replaced by political appointments today. Customary Laws have, at times, kept up with changes but many times not.
Having been instated since “time immemorial,” even though the people have faith in the customary courts, “the element of natural justice has been missing,” says Nino Iralu from the Nagaland Legal Services Authority (NLSA) of modern customary law. So, in many villages when women face domestic abuse, for instance, they have to either keep quiet in order to “save face” or make a complaint through a brother who will then “resolve” the matter within the family or clan (there are family courts to resolve divorce cases too). Even if the matter goes to a customary court, no woman will hear the matter as women cannot “traditionally” be GBs or DBs.
When there is a violation of customary laws, the village council decides on the matter—with clan based male representation, the “voice of the people” becomes the law, or even more powerful, notes Dr. Visier Sanyü. Today, the interpretation of ‘customary law’ is hinged on “power and public opinion,” and if an all powerful organization decides to interpret it in anyway, then it stays that way.
Village Councils have the power to legislate and execute customary laws, says Phutoli Chingmak.
“In this case, customary laws can be misused to some extent” and justice denied, noted Iralu. NLSA thus works in all of Nagaland’s districts to “sensitize” people to bring “serious” offenses like violence against women or murder to State courts.
On the other hand, only those with enough money can approach the ‘Indian legal system’ for justice, highlights Shikuto Zalipu.
What of justice then?
According to Phutoli Chingmak, “if you only stick to precedents set 100-200 years ago, how will you evolve?” And without evolving through frameworks such as human rights and equity, customary laws will eventually phase out.
To this, Zalipu notes that “Since the coming of Christianity, many old Naga customs have changed; old ones have been discarded and new ones taken over.” Change becomes necessary for all laws to flourish and flower. “Awareness of our present situation is critical for customary law to flourish,” says Akang Ao.
A Naga Tribunal?
One possibility for change is for Nagaland to have its own constitution—guidelines laid out for what falls under the spectrum of customary laws and remedies available, suggests Dr. Visier Sanyü.
This can be no easy task given the variety of customary laws among the Naga peoples. Dr. Sanyü acknowledges this dilemma and notes, “Writing oral laws down may create more confusion so it will need scientists, anthropologists, lawyers etc. to prepare such a document.”
Akang Ao agrees. “It is time that the Nagaland Legislative Assembly (NLA) make a uniform set of rules and enact them to accommodate the changing nature of society,” he notes.
Shikuto Zalipu provides the anchor—the 16 point agreement. Its points 8 and 9 lay out the details of local self government and administration of justice respectively—points that fail to appear on Article 371-A, a legal provision that ought to be read in conjunction with the 16 point agreement.
‘Local Self-Government’ offers that each tribe shall have a village council, range council (abolished) and tribal council to make rules and deal with matters concerning the respective tribes. Read alongside point 9 (b)(ii), the local councils can follow a continuum in matters of justice by approaching a “Naga Tribunal (for the whole of Nagaland) in respect of cases decided according to customary law.”
This offers an option for having an apex ‘customary law’ body that could standardize practice of the laws—where applicable, where not—as well as look into amendments, while relieving the NLA of judicial responsibility, making each independent of the other—philosophically and in practice.
The senior police official is, however, skeptical. “It will be difficult. There are many similarities between different customary laws but unique practices in different regions have led to unique laws which will be difficult to bring under an umbrella,” he feels during the course of discussion, albeit promising to think more about the provision.
And what of inclusion? While it is traditional to exclude women from customary arbitration, women have proved their mantle in the practice of law through the State legal and judicial systems. Why not help upgrade customary law as a collective gender effort then? Why not women GBs and DBs?
“That you have to ask the men,” says Prof. Ao, hinting at how much of this hinges on the “voice of the people.”
According to scholar Dr. Dolly Kikon, “If Naga customary law is seen as the foundation of justice, the exclusion of women from these powerful decision making-bodies negates the entire notion that these are pillars of justice.”
“The change has to begin with tribes bringing women into tribal councils,” says the police official. In his opinion, villages or a bigger Naga Tribunal will not accept inclusion, particularly due to the powerful influence of tribe based organizations.
Phutoli Chingmak concurs and suggests that a discussion and dialogue is necessary within each tribe to negotiate the evolutionary changes to be brought to customary laws in each region—this can be facilitated by the Nagaland State Government.
“We have to find a point of reconciliation through a two pronged approach—from top-down, bottom-up as well as between genders,” she asserts, maintaining that the collective wisdom of both men and women can lead to “mutually decided” changes towards a shared future. Bringing a Tribunal without the grassroots evolution would be like building a skyscraper without a foundation.
While this may be an uphill climb for Naga society as a whole, the fruits derived thus may be a small step towards transforming a source of conflict into the community’s life force.
Rules for administration of justice and police in Nagaland
THE RULES FOR Administration OF JUSTICE AND POLICE IN NAGALAND
THE RULES FOR Administration OF JUSTICE AND POLICE IN NAGALAND (THIRD AMENDMENT) ACT, 1984. (NAGALAND ACT NO. 1 OF 1987)
(The relevant extract)
IV-A-Customary Courts
Constitution of Courts
39. There shall be three classes of Customary Courts as specified below, in the State of Nagaland to be constituted by the State Government for the trial of suits and cases between the parties; all of whom belonging to a Scheduled Tribe or Tribes with powers and jurisdiction mentioned in this Chapter :
(i) Village Courts,
(ii) Subordinate District Customary Courts,
(iii) District Customary Courts,
(i) Village Courts
40. (1) There shall be a Village Court for each village.
(2) Each Village Court shall be composed of members of the Village Council constituted under the Nagaland Village and area Councils Act, 1978 (Nagaland Act No. 1 of 1979) including Gaon burns and Angs of the respective village :
Provided that in "An area" members of the traditionally established village institutions like Putu Menden and recognised as Village Council under the aforesaid Act and the Gaonburas shall constitute a Village Court.
(3) There shall be a Chairman and a Secretary of each Village Court: Provided that a sitting member of any Area Council under the Nagaland Village and Area Councils Act, 1978 shall not be entitled to be a Chairman of any Village Court.
(4) The Chairman of the Village Council under the Nagaland Village and Area Councils Act, 1978 shall be the Chairman of the Court. The Secretary of the Village Court shall be selected and appointed by the Village Court from amongst the Members of the Village Court:
Provided that the village inhabited by persons belonging to Sema, Konyak or any other Tribe or Tribes having hereditary Chiefs/Angs by custom or inhabited by majority of any of such Tribes the Chairman of such Village Court shall be the hereditary Chief of such village.
(5) Removal of Chairman and Members of any Village Court. - The State Government having given an opportunity to explain, may remove the Chairman any Member of any Village Court if he is persistently omitting or refusing to carry out or disobeying the provisions of this Act and the Rules made thereunder or any lawful order issued thereunder or he ceases to reside within his own village are continuously for a period of more than twelve months or he becomes otherwise incapable of acting or is declared insolvent or convicted by a Criminal Court for any offence involving moral turpitude:
41. (1) The quorum of the Village Court constituted under Rule 10 shall be by a majority of the total number of members of the Village Court.
(2) The Secretary of the Village Court shall record the proceedings of the Court.
(3) The jurisdiction of a Village Court shall extend to the hearing and trial of suits and cases arising within the territorial limits of the village.
(ii) Subordinate District Customary Courts
42. (1) There shall be Subordinate District Customary Court at places to be notified by the State Government.
(2) (a) Each Subordinate District Customary Court shall consist or an Officer having judicial experience to be appointed by the State Government and designated as Presiding Officer of that Court and other members, not less than 4 and not more than 6 to be selected for any particular case by the Presiding Officer from a panel of names of members appointed by the State Government and included in a list prepared, maintained and duly notified for each Subordinate District Customary Court:
Provided that the State Government, may from time to time, include or omit name or names of members from the said panel in the same manner as may be considered necessary :
Provided further that any sitting member of any Area Council under Nagaland (Act No. 1 of 1979) shall not be eligible to be a member of the Subordinate District Customary Court.
- (b) In appointing members of the Subordinate District Customary Court, for inclusion of their names in the panel earlier referred to, due consideration shall be given to persons having knowledge of the tribal customs and usages prevalent in the area and experience in trial of cases according to customs and usages prevalent in the area.
- (c) The Presiding Officer so appointed, shall preside over the Court and shall also act as records of the Court.
(3) The territorial jurisdiction of each Subordinate District Customary Court shall be such as may be notified by the State Government in that behalf. The Deputy Commissioner of the concerned District will provide Subordinate District Customary Court with such ministerial staff as may be considered necessary with the approval of the State Government.
43. The jurisdiction of the subordinate District Customary Court shall extend to suits and cases arising within the territorial jurisdiction of the said Court between parties residing within the jurisdiction of different Village Courts thereunder, cases which are not triable by the Village Courts and cases involving disputes between villages falling within the territorial jurisdiction of the said Court.
(iii) District Customary Courts
44. (1) There shall be one District Customary Court for each District. Each District Customary Court shall consists of one Presiding Officer, and two other members to be selected for any particular case by the said Presiding Officer from a panel of names of members appointed by the State Government and included in the list prepared, maintained and duly notified for each District Customary Court.
(2) No person shall be qualified for appointment as Presiding Officer of the District Customary Court unless he has sufficient knowledge of tribal customs and usage prevalent in the district and has experience in the trial of suits and cases in accordance with laws and rules in force in the state :
Provided that a sitting member of any Area Council under Nagaland Act No. 1 of 1970 shall not be entitled to hold Office of the Presiding Officer of District Customary Court.
(3) The District Customary Court will ordinarily sit in the district headquarter. The Court may also sit at any other place or places within the district whenever it is considered necessary in the interest of justice. In such a case, a tour programme of the Court shall be submitted one week in advance to the Deputy Commissioner of the concerned district.
(I) Village Courts
Powers of Courts
45. A Village Court shall try suits and cases of the following nature:
(a) Cases of civil and miscellaneous nature falling within the purview of the village or tribal laws and customs :
Provided that if any immovable property is in dispute, the property must be situated within the jurisdiction of the Village Court and in all other cases all the parties must reside or hold land within such jurisdiction.
(b) Criminal cases falling within the purview of tribal laws, customs and offences of theft, pilfering, mischief, trespass, assault, hurt, affray of whatever kind, drunkenness or disorderly brawling, public nuisance and cases of wrongful restraint and such offences occurring within the jurisdiction of the Village Court.
46. (1) A Village Court shall not be competent to pass a sentence of imprisonment in any criminal case. It shall have power to impose a fine for any offence it is competence to try, up to a limit of Rs. 500 (Rupees Five hundred). It may also award payment in restitution or compensation to the aggrieved or injured party in accordance with the customary law.
(2) In a civil case a Village Court shall have power to award costs as also compensation to those against whom unfounded or vexatious suits or cases have been instituted before the Court.
(3) The fines and payments imposed and ordered under sub Rules (1) and (2) may be enforced by distraint of the property of the offender.
47. A Village Court shall have power to order attendance of the accused and the witnesses to be examined in the case and to impose a fine not exceeding Rs. 100 (Rupees one hundred) on any person wilfully failing to attend when so ordered or commit for contempt of such Court.
48. If a person on whom a fine under Rule 47 above has been imposed by a Village Court, fails to deposit the amount at once or within such time as may be allowed, the Village Court shall proceed to realise the fine imposed in such manner as it may deem fit.
49. Where a Village Court is of opinion that the sentence it is competent to pass is insufficient in the circumstances of the case, it shall without delay refer the case to the competent Court, and that Court shall dispose of the case in accordance with these Rules.
50. A Subordinate District Customary Court shall exercise such powers in criminal cases, not exceeding those of a Magistrate Second Class as defined in the Code of Criminal Procedure, 1973 as may be invested by the State Government.
51. (1) A Subordinate District Customary Court shall be competent to try all civil cases not triable by Village Court in which all the parties reside or hold land within its jurisdiction and if any immovable property is in dispute, the said property is also situated within the said jurisdiction
(2) A Subordinate District Customary Court shall try such criminal cases committed within its jurisdiction which are not triable by the Village Court and are mentioned in the Schedule I appended hereto and cases referred to it by the Village Court under Rule 49 of the Rules.
52. Whenever there is any likelihood of breach of the peace or whenever any person accused of any offence involving a breach of the peace, or of abetting the same or any person accused of committing criminal intimidation is convicted of such an offence by any Customary Court and such Court is of opinion that it is necessary to require such person to execute a bond for keeping the peace, the matter shall be referred to the Deputy Commissioner who shall take necessary action in accordance with law.
53. In case where in the opinion of a Customary Court there is sufficient ground for proceeding under Section 44 of the Code of Criminal Procedure, 1973 and immediate prevention or speedy remedy is desirable, such Court shall refer the matter to the Deputy Commissioner who shall on such reference being made to him, take such action as he considers necessary under the said section.
54. Whenever a Customary Court is satisfied that a dispute is likely to cause a breach of the peace exists, concerning any land or water or the boundaries thereof within the local limits of its local jurisdiction, such Court shall refer the matter to the Deputy Commissioner and the Deputy Commissioner whenever such a reference is made to him, shall take such action as he considers necessary under the law.
(III) District Customary Courts
55. (1) The District Customary Court shall be the Court of appeal as against decisions of the Subordinate District Customary Courts and Village Courts in suits and cases both civil and criminal decided by the said Courts.
(2) The District Customary Court may also try suits and cases triable by the Subordinate District Customary Courts, as and when occasion arises.
56. The District Customary Court in trying criminal cases as an original Court shall exercise such powers not exceeding those of a Magistrate First Class as defined in the Code of Criminal Procedure, 1973 as may be invested with by the State Government. The District Customary Court may also award payment in restitution or compensation to the aggrieved or to the injured party in accordance with Customary law.
57. (1) The District Customary Court after hearing parties to the appeal shall pronounce judgement in open Court, either at once or as soon thereafter, as may be possible on a date to be fixed for the purpose.
(2) The judgement passed on appeal by the District Customary Court shall contain the points for determination and the decisions thereon with reasons therefor.
(3) The District Customary Court in disposing of an appeal may allow such evidence or document to be produced or witness to be examined, as considered necessary for the ends of justice.
58. Whenever it is made to appear to the District Customary Court, on application made or otherwise, that it is expedient for the ends of justice that any particular suit or case be transferred from one Subordinate District Customary Court to another Subordinate District Customary Village Court within the same district or any case pending before any Subordinate Court within the district be transferred to its own Court, the District Customary Court may pass order transferring such cases, recording brief reasons for the order passed.
59. The State Government may direct an appeal to be presented to the District Customary Court against an order of acquittal passed by an Subordinate District Customary Court or Village Court and such an appeal shall be presented within a period of 90 (ninety) days from the of order of acquittal excluding the time needed for obtaining a copy of the order appealed against.
Procedure
(i) Village Courts
60. (1) A Village Court shall try all suits and cases following the customs and usages applicable in deciding such suits and cases.
(2) A Village Court shall try and decide all suits and cases after hearing the parties and their witness, if any, and shall pronounce its decision forthwith. The decision of the majority of the members present shall be the decision of the Village Court: Provided that the Chairman presiding over the Court shall have a casting vote in the event of there being a tie.
(3) Except where the Village Court otherwise decides only verbal notice in required to be given by the Village Court to the parties to any suit or case and their witnesses.
(4) A Village Court may decide any suit or case ex-parte, if it is satisfied that the other party remains absent wilfully.
(5) The proceedings of the Village Court in any suit or case shall be recorded in writing.
61. A Village Court may carry out its decision at once and order attachment of property be made, subject to the provisions of Rule 27 of the Rules, but in no case properly so attached be sold if the party concerned claims to prefer an appeal before the Appellate Court under the Rules.
(ii) Subordinate District Customary Court and District Customary Court
62. (1) The procedure of the Subordinate District Customary Court and the District Customary Court in criminal cases shall be in the spirit of the Code of Criminal Procedure, as far as possible consistent with the rules.
(2) The District Customary Court and the Subordinate District Customary Court in deciding civil suits and cases shall follow the customs and usages applicable to such suits and cases and shall adjudicate all such suits and cases according to justice, equity, good conscience and the customs and usages applicable.
(3) The District Customary Court and the Subordinate District Customary Court shall follow in matters of procedure the spirit of the Code of Civil Procedure in matters not covered by customs and usages followed in the district.
(4) It shall be discretionary for the District Customary Court and the Subordinate District Customary Court to examine witnesses on oath in any form, or to warn them that they are liable to the punishment for perjury, if they state that which they know to be false.
(5) Summons of any person residing outside the District or the State of Nagaland or on any person not belonging to any Scheduled tribe shall be issued through the Deputy Commissioner of the District.
(6) The proceedings including examination of witnesses in the District Customary Court and the Subordinate District Customary Court shall be generally in English.
63. The Customary Courts shall maintain such registers and records in respect of suits and cases filed in such Courts as may be directed by the State Government from time to time.
Appeal/Revision
64. (1) An appeal shall lie to the District Customary Court against the conviction and sentence passed in any criminal case by the Subordinate District Customary Court or the Village Court, all such appeals must be presented within sixty days from the date of the order appealed against excluding the time taken in obtaining copy of the order:
Provided that the Appellate Court may condone the delay and admit the appeal presented beyond the prescribed time, on being satisfied that there was sufficient cause for not presenting the appeal in time.
(2) An appeal shall lie to the District Customary Court against the decision of the Subordinate District Customary Court or Village Court in suits or cases decided under these rules. All such appeals shall be presented within ninety days from the date of the order appealed against excluding the time taken in obtaining copy of the order:
Provided that the Appellate Court may condone the delay and admit the appeal presented beyond the prescribed time on being satisfied that there was sufficient cause for not presenting the appeal in time.
(3) All orders passed by the District Customary Court under the Rules in Chapter IV-A shall be final.
Execution of Sentence and Decision in Suits and Cases
65. The Customary Courts in executing sentence passed shall follow the spirit of the Code of Criminal Procedure, 1973 and in executing such sentences, services of the regular Police force as may be required, shall be provided to such Court on due intimation to the Superintendent of Police of the District.
66. (1) The Customary Courts in executing decisions rendered in civil suits and cases shall follow the spirit of the Code of Civil Procedure in that regard. Provided that houses, needful clothing, cooking utensils or implements, may not be attached, sold or transferred in execution of such decisions unless themselves the subject of the suit or case. Land may be sold or temporarily transferred in execution of such decision only when customs and usages prevalent in the area of the district so permit.
(2) There shall be no imprisonment for debt excepting cases where the customary Court is satisfied that fraudulent disposal or concealment of property has taken place and in such cases the debtor may be detained for a period not exceeding three months.
(3) The decision passed on appeal in civil cases shall be sent to the original Court for execution.
67. (1) The State Government may, from time to time, make rules for the purpose of giving effect to the provisions of Chapter IV-A of the Rules.
(2) In particular and without prejudice to the generality of the foregoing power, such Rules may provide for all or any of the following matters, namely,-
- (a) The time and places of sitting of customary Courts.
- (b) Detailed qualifications and/or disqualifications for being appointed as the Presiding Officer and members of Customary Courts.
- (c) Further procedure, if any, to be followed for trial of cases in the customary Courts.
- (d) The terms of office, salaries and allowances, if any, to be paid to the Chairman, Members and other office bearers of the Customary Courts.
(3) Every rule made under these rules shall be laid as soon as may be after it is made, before the Nagaland Legislative Assembly while it is in session and if before the expiry of the session in which it is so laid in the session immediately following the Nagaland Legislative Assembly agree in making any modification in the rule of the Nagaland Legislative Assembly agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
(4) All rules made shall be published in the Official Gazette.
68. On and from the date of coming into force of the present Amendment Act and the enforcement of the Chapter IV-A of the Rules in any area of the State, the provisions contained in Section 14, Section 33 (2) and any other provisions of the Nagaland Village and Area Councils Act, 1978 (Nagaland act No. 1 of 1979) and the relevant Rules framed thereunder conferring powers of administration of justice to the Village Council or any other authority or body, shall stand repealed to that extent in such area or areas."
69. Rule 39 of the Principal Rules under the Head "V-Arms and Ammunition's" shall be numbered as Rule 69.
Dobashi, Gaonburha institutions
Dobashis: Review committee for their benefit
January 21, 2013: Business Standard
"The Dobashis as custodian of Naga customary laws must continue to guide the administrators on Naga tradition and customs," Rio said at afunction organised on the 50th anniversary of 'Nagaland Dobashis Association' here yesterday,
The chief minister said that he had asked them to document the Naga customary laws and practices which actually protected and upheld the unique identity of the Naga culture and traditions.
Rio recalled that Gaonburha and Dobashi institutions were created by the British for dispensation of administration at grassroots in the North-East.
Nagaland Commissioner Banuo Z Jamir asked the Dobashis to explore possibility for inducting women as Dobashis since many decisions were taken in the customary courts without their knowledge or consent.
‘Gaonburas’ are integral to the unique Naga identity, history
‘GBs an integral part of Naga identity’, January 29, 2016: The Morung Express
Parliamentary Secretary for Municipal Affairs, and Economics & Statistics, R Tohanba, said ‘gaonburas’ (GBs) are an “integral and indispensable” component of the unique identity and history of the Nagaland people.
The Parliamentary Secretary said the role of GBs assumes greater significance in the light of Article 371 (A) of the Indian Constitution, which gives special provision to the State of Nagaland in respect of religious or social practices, Naga customary law and procedure and administration of civil and criminal justice involving decisions according to Naga customary law.
“Nagaland is unique not only because of its colourful tribes and their rich cultural heritage but also because of institutions like the GB-ship”, Tohanba said in his address as chief guest of the inaugural ceremony of the silver jubilee celebration of GB’s Union Chessore Area held at Chessore town public ground on Wednesday.
He said GBs being the custodian of the customary laws and practices, which also implies safeguarding the inherent rights the Naga people, GBs should follow the principle of natural justice and deliver justice without fear or favour. Tohanba said unlike the Indian judiciary system, delivery of justice by Naga customary courts is quick, cheap and accessible by one and all. He however lamented that in recent times, there has been a decrease in the number of appeals and cases in Naga customary and village courts.
“But as long as the GBs keep their integrity intact and deliver justices without bias, the institution of GB-ship will flourish even in the days to come”, he said and added that as the name suggests “gaonburas” should exhibit maturity, wisdom and have in-depth knowledge of Naga traditions and customs.
The Parliamentary Secretary also said GBs and village councils being the grassroot representatives of the Government, it is their bounden duty to act as a bridge between the people and government.
“As much as the government desire for a peace to reign in Nagaland, this GBs union comprising of 13 villages and Chessore town, should also contribute towards bringing an environment where each one of us can co-exist in peace and harmony”, Tohanba said.
The Parliamentary Secretary further expressed optimism that with the signing of the Framework Agreement between the Government of India and NSCN (IM), Nagas would experience a new dawn of peace and prosperity. SDO (C) Chessore, K Furhesie; President Yimchungrü Tribal Council, Z Keozih and President Yimchungrü GB’s Union also addressed the jubilee celebration. NPF central Vice President, Lepshi Ao, accompanied the Parliamentary Secretary.
Earlier, President GB’s Union Chessore Area, Neoji Yim, delivered the welcome address and Chairman, jubilee planning committee, Shokum, proposed vote of thanks. Troupes from Shipwonger village, Huker village, Chessore village and Sholünberü Culture Club presented cultural dances and songs.
Collective fines
Gauhati HC: Mezoma Village Council case
The Gauhati High Court, in the Mezoma Village Council, held in 2010, “Under Section 14 of the Ru les for the Administration of Justice and Police in Nagaland, 1937, as amended, all inhabitants of the State of Nagaland are bo und to aid the regular police and the rural police when required to do so for the maintenance of law and order or the apprehension of offenders and whoever fails to do so shall be liable to fine not exceeding Rs.250/- for each such failure to be adjudged by the Mauzadars, Gaonburas, Chiefs, Headman of Khels, or other Chie f Village authority or by the Deputy Commissioner, Addl. Deputy Commissioner or such officers as may be authorized by the State Government in that behalf. This provision of imposing fine can not be used or mistaken for power to impose ‘collective fine’ which is not at all provided under the existing local Act and Rules.
Patriarchal?
2018: Questioned by women’s rights activists
Customary Courts Patriarchal, Say Activists
Imagine a court with no vacation, zero pendency and on-the-spot judgments. The Kohima district customary court, which deals with issues of uncodified tribal laws, boasts of such a record. Here, litigants argue their own cases and all it needs to get justice is just Rs 200. But the customary laws and the courts are being questioned by women’s rights activists.
“Rulings in many cases are delivered the very day a complaint is filed. When we need to visit the spot to determine a case or if it seems complicated, we take a week’s time at best,” says chief Dobashi Keneilezo, who joined the court in 1987.
Dobashi is anglicisation of ‘do bhashi’ or a bilingual person (who served as translators during the Raj. Apart from their tribal dialect, they knew Nagamese, a pidgin Assamese still used as the lingua franca across Nagaland. The British could communicate in Nagamese.
The court, like other tribal courts in various districts of Nagaland, functions under the deputy commissioner of the district. There’s no pendency in most of these courts, says Keneilezo. “About 80% of the rulings are never challenged,” says Dobashi Menuolie.
There are 20 Dobashis in the Kohima court and they all sit together to discuss and decide on every case. Established in 1924, this was the first customary court, says the head Dobashi, and deals with 100 to 250 cases a year.
Since issues of land and marriage are governed by tribal laws, and each tribe has its own set of rules, there is no rule book to guide the Dobashis. These men, picked by the village councils and interviewed and appointed by the deputy commissioner, interpret the laws of the tribes and hand down judgments.
The powers of the court comes from the special rights given to Nagaland by Article 371(A) of the Constitution, which states that no Act of Parliament regarding social or religious practices of the Nagas and to do with tribal customary laws shall apply to Nagaland unless the state assembly passes a resolution to approve of it.
But the Naga customary laws have come under criticism for their patriarchal nature. “Article 371(A) does not envision women’s empowerment,” says Rosemary Dzuvichu, advisor to Naga Mothers Association, which has been fighting for political rights of women in Nagaland.
There is no woman Dobashi in Nagaland. How can the system be fair if the village councils that hand-pick the Dobashis don’t see active participation of women, ask women’s rights activists.
Officials too agree. “There is a need for laws of all Naga tribes to be codified or they could be misinterpreted, more so regarding those related to women,” says additional deputy commissioner TL Kiusumowa Tikhir.
NSCW lists the issues
JUNE 30, 2017: Nagalnd State Commission for Women: Government of Nagaland
TRIBAL CUSTOMARY PRACTICES RELATING TO WOMEN: ISSUES/STATUS —A Brief Introduction
The documents in these volumes are the records of research done by different Naga scholars among their own tribes. The project was initiated by the Nagaland State Commission for Women in 2010-11 and was done in a phase-wise manner. The last submission was received in July 2013. The findings are now being published in the form they were received as monographs which will highlight the unique features of individual traits in the different tribal customary practices. Such documentation has been done of all the tribes together for the first time and we hope that these would be of immense help not only to future scholars but also to the various Government Departments dealing with women’s issues in helping them to devise and implement schemes for women empowerment in the state. Incidentally, this is the pilot project of the Commission in carrying out the mandate assigned to it vide the Nagaland Women Commission Act, 2006-5 (1) (a) where it says that the Commission is ‘to study, research and codify the customary law relating to women…’
In order to throw a little light on the ground realities relating to the various documents, a brief background note is presented here. Nagaland is a state inhabited by a large number of tribes and sub-tribes, each speaking a distinctive language exclusive to the tribe and hence un-intelligible to others. As such the customs and practices also differ from tribe to tribe. But despite the linguistic isolation of the individual tribes in their habitats, there are certain important common customs among the tribes, because of which perhaps these assorted tribal groups are rightly designated as Nagas. The different researchers belong to the tribes they have worked on and have presented their findings within the frame-work of these commonalities relating to important issues regarding the status of women in Naga society. It may be mentioned here that though the main topic was provided by the Commission, the commonalities have emerged from the societal frameworks of the various tribes and further go on to indicate the cultural affinities among the Naga tribes.
The important social institutions common to all the tribes are presented here which are the main indicators of the status of women in Naga society and polity.
Customary Courts of Law:
The Nagas belong to an oral culture which they have practiced through ages till present times where every aspect of life is governed through time-honoured customs and practices. These practices have not yet been codified. Therefore in every Naga village the seat of governance is the Customary Court of Law and all the inhabitants are subject to the ruling of this body. It is this body that has preserved the customs and practices, albeit in the oral form only, which are still accepted as infallible and sacrosanct within the tribes.
Patriarchy:
Naga society is patriarchal in every sense of the word and therefore it can be understood why this factor influences the balance of justice against women in the general social setup among all the tribes. The findings have presented the common practices which exist even today under the patriarchal system of governance, both in rural and urban set-ups.
Marriage Customs:
Most marriages among the different tribes are claimed to be monogamous but there have been instances of exceptions in a few tribes where men have married more than one wife. Marriage among the Nagas is exogamous; therefore only inter-clan marriage is allowed among all the tribes. Intra-clan marriage is banned and considered a crime and taboo by all. People committing this ‘crime’ are fined heavily by the customary Courts and invariably expelled from their ancestral villages.
Bride-Price:
The concept of dowry does not exist in Naga society, though in some of these documents the word is used erroneously in place of bride-price. The practice of giving bride-price in the formal sense exists among some tribes like Rengma, Konyak, Lotha, Pochury, Phom, Zeliang and in a village called Wui among the Khiamnungan tribe. The practice of giving ‘gifts’ to the bride by her father at the time of marriage in urban areas these days seems to be an innovative continuance of the earlier customary practice of giving bride-price.
Divorce:
Traditionally divorce was rare among some of the Nagas but in some tribes there were clear stipulations regarding the reasons for divorce, penalty on the guilty person and the question of child custody etc. The matter then would be settled in accordance with the norms laid down in the customary practices. In some of these documents, the reasons for divorce, penalties imposed and conditions for custody of children are presented in great detail.
Inheritance:
According to the patriarchal system of society, no Naga woman can inherit ancestral property but gifting of land to daughters on their marriage was practiced by many tribes as noted in several research findings. In certain cases the woman is given a share of the ‘acquired’ property.
Wages:
Though women are allowed to work outside the home as daily labourers they are not given equal wages as the men. This is true of both urban and rural situations.
Participation in Governance:
No Naga woman is ever allowed to be a member of the Village Council nor allowed to attend its meetings. Outside the home, she has no say in any matter of governance. In some of the presentations, e.g. the Aos, there are interesting facts about the way men viewed the status of women and their capabilities regarding governance in the traditional system. This situation continues in the urban areas also where till date women are not allowed to enter local bodies of governance.
One notices that the documents vary in terms of information regarding the topic, the nature of research and valuation. A few have commented on the influence of modern times as well as Christianity on the evolution of tribal polities. There is hardly any analysis in the technical sense of the word, as is to be expected in a project of this type. But all the same, it is to be appreciated that important issues relating to women’s status in an oral culture have now been documented, however rudimentary it may seem. What is important here is that now the status of Naga women has become an important issue for debate and deliberation, not only among intellectuals but among the women themselves, even in the grass-roots level. This indeed is an important step forward towards giving women their due rights in Naga society.
Certain observations are of interest here.
Some cases have been cited where Customary Laws have been superseded by Indian Laws which is termed a ‘forward trend’ and which points to the ‘possibility’ of traditional laws to ‘adapt’ to changes taking place in society. (Ao).
Some General Suggestions found in the presentations:
Codification of customary laws as common legal framework for dealing with women’s issues in Naga society.
Women/girls should be given due share of inheritance.
Adequate representation of women in Village Development Boards and equal responsibility assigned to them and not induct them merely for form’s sake.
Women should be admitted to the traditional Tribal Bodies.
More involvement of the Church in liberalizing customary laws to allow women’s participation in all decision making institutions. The continued subordinate status of women in Naga society can be understood as the natural corollary to the perpetuation/assimilation of customary practices for ages which has denied women many of their rights in the name of convention and traditional norms. The very fact that each tribal document carries the approval certificate of the Tribal Council/Hoho (all comprising of men only) further emphasizes the persistent dominance of the patriarchal mind-set and behaviour in Naga society. The status of Naga women therefore can be attributed to the stoic acceptance of traditional practices by both men and women which needs to be reviewed urgently. Integration of the customary practices and present circumstances is not only possible but has become a social necessity.
In summing up, one can perhaps say that the following quote from one of the researchers is the strongest indictment against the traditional practices:
Women’s basic right of determining their political status is disregarded in the customary practices. (Moarenla, Ao).
However, it has also to be mentioned here that there have been many positive changes in women’s status in Naga society today. There are Women Hohos, (Apex Body of Women’s Organizations) among all the tribes. They are important social organizations and are raising their voice about many pertinent issues relating to women and their strongest effort is focused on the increasing instances of violence against women. Some Hoho has gone to the extent of advocating a ‘Common Naga Law’ on rape. Interestingly, rape cases are rarely mentioned in the customary practices relating to women, thus indicating that these violent incidents are of recent origin in the rapidly changing social scenario.
As for the present status of Naga women, they are participating in practically all spheres of life; be it administration, teaching, medical services, entrepreneurship, social activism, armed forces like the police and have proved their competence and worth in whatever they have undertaken. In many ways, one can say that Naga women are far better off than their counterparts elsewhere in the country. But the undeniable fact remains that they occupy an institutionally secondary position to men, especially in politics.
The gradual ‘emancipation’ of women has come about because no society can remain static; and the emergence of women as a viable force to reckon with is already evident in Naga society too. Some analysis of this factor is also seen in a couple of the documents presented here. The present ‘status’ of Naga women therefore should be viewed as in a volatile evolutionary flux where the contours may vary in accordance to the tools of measurements or comparisons applied to the concept called ‘Naga woman’.
See also
Nagaland: customary law, customary courts
