Custom Versus Modern Justice: On Naga customary law

The conflict between the Indian justice delivery system and the Naga customary law, two parallel legal systems operating in Nagaland (read Naga-inhabited areas in India), has become obvious over the years. While Article 371A of the Indian Constitution provides special provisions with respect to Naga customary law as well as the administration of civil and criminal justice, ensuring that no act of Parliament shall apply to the state unless the state's Legislative Assembly decides otherwise by resolution, the legal framework based on Naga traditions, customs, and norms is simply not equipped to deal with several cases, particularly criminal ones. For instance, people who commit heinous crimes like murder, rape, kidnapping, etc., are often let off with lenient punishments in the form of ostracism, public shaming of culprits by parading them, hair chopping, and compensation either in cash or material including livestock and paddy, while minor offences are met with disproportionately severe punishments. This often invites ridicule from the public, especially on social media platforms, which is evident in the recent alleged settlement of a physical assault case in Dimapur with a pig as compensation. It’s nothing but a mockery of justice.

The Indian legal framework is governed by the Indian Penal Code, the Criminal Law (Amendment) Act, the Code of Criminal Procedure, 1973, the Protection of Women from Domestic Violence Act, 2005, etc., for cases related to murder, rape, domestic violence, kidnapping and other crimes. In contrast, Naga customary law does not specify predetermined punishments for various offenses, and with no general procedure to be followed in dealing with criminal cases, penalties can differ from tribe to tribe and village to village based on their traditional practices, customs and norms. This gives room for bias, misinterpretation and unfair ruling based on the social status of the people involved. There are also instances where Indian court rulings supersede verdicts based on Naga customary law. Not long ago, a court in Nagaland sentenced several women to one year of imprisonment for publicly humiliating a woman accused of having an extra-marital affair by chopping off her hair, stripping and parading naked. While the action may be justified under the customary law, it no doubt undermines human rights and dignity. Naga customary law is also biased against women – from inheritance rights to alimony to child custody after divorce, besides stigmatisation, making them feel powerless. This is why many women choose to live with abusive husbands and dare not speak up for their rights. While Naga customary law can continue to play a significant role in conflict resolution, land issues between villages and individuals, and other civil cases, it is clearly not equipped to deal with complex modern issues. Justice can’t be denied under the garb of constitutional provision.