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Dimapur, Aug. 17 (EMN): Nagaland Bar Association (NBA) has termed the constitution of Naga tribunals ‘unnecessary’ as customary laws are safeguarded within the ambit of Rules for the Administration of Justice and Police in Nagaland, 1937.
The association, in a representation to the government, pointed out that the Nagaland Village Councils (Fourth Amendment) Act, 2009 does not confer any judicial authority to the tribal councils/hohos/unions/organisations.
It said the Rules of 1937 stated that customary law would be administered at the village level and between persons belonging to the same tribe. In the case of disputes between two villages, the rules provide that with the consent of the parties, an attempt would be made to resolve the dispute by a body of elders/ panchayat, appointed by the deputy commissioner. It also stated that the rules were specific in relation to the non-application of customary law to those who were not Nagas.
‘The administration of customary law is through the village councils, the dobashis, the district administration and judicial officers recruited under the Nagaland Judicial Service Rules 2006. Therefore, apart from the authorities empowered by law to adjudicate as courts, there can be no other courts or Tribunals,’ read the statement.
The association also noted that there was a ‘general misconception’ about the protection afforded by Article 371 A of the Constitution of India, in relation to the Customary Laws of the Nagas.
‘A reading of the above referred Amendment Act conveys that statutory recognition has been given to the "tribal councils". Section 3 of the said Act states that tribal councils means "the various Tribal Councils/Hohos/Unions/Organisations existing in Nagaland". This definition is open end. By implication, this Section may be interpreted to include all tribal councils/hohos/unions/organisations in Nagaland. The said Section qualifies the meaning of tribal councils as being constituted by the various tribes in accordance with that respective traditions, customary practices and usages. The recognition of tribal councils per se, appears to be innocuous but could lead to complications,’ it read.
In every district, sub-division, area, etc. in the state, the association pointed out that there tribal councils/hohos/unions/organisations constituted in accordance with “respective traditions, customary practices" is self contradictory.
‘It may be appreciated that tribal councils/hohos/unions/organisations are a relatively new phenomena in Naga society. Also, most of these bodies are either without any juristic existence and/or they are creatures of statutes. This would mean that the Tribal Councils, etc. are not constituted under traditions, customary practices and usages,’ it said.
The Amendment Act of 2009 has also inserted Section 26 which has listed certain subjects where the State may seek the assistance of tribal councils/hohos/unions/organisations.
“This provision has been interpreted by officers of the state as well as the huge number of tribal councils/hohos/unions/organisations to mean the empowerment to function as Courts/Tribunals. This is a patently erroneous interpretation,” it stated.
It further stated that codification of customary laws, which is related to the constitution of Naga tribunals, would mean the ‘demise of customary laws’.
“To all affects and purposes, law that is codified becomes statutory law. In our enthusiasm to preserve and protect our customary practices and usages, we should not be the reason for their decimation,” it read.
It further urged the state government to ensure that those entrusted with the responsibility of administering customary laws have the necessary skill sets.