Dimapur, Nov. 17 (EMN): The Nagaland Bar Association (NBA) has opposed the demand of the Dobhasis to constitute customary courts in the state, claiming that ‘Dobhasis’ courts are products of law as opposed to customary institutions and customary courts’.
It was reacting to the demand of the Nagaland Dobashi Association to formally constitute customary courts in Nagaland, for which a memorandum was submitted to the chief minister in October.
The NBA stated in a press release that ‘village court is a customary court and administers justice according to customary law and customary practices’, and this provision has been given in the Rules for the Administration of Justice and Police in Nagaland, 1937.
It added that the 1837 Rules (second amendment) Act, 1982, the Dobhasis were empowered “to administer justice retrospectively with effect from 1st December, 1963, and they are also governed by customary procedures and customary practices”.
“A custom to be enforceable as a legal custom must have the antiquity of its origin, continuity, consistency and certainty in practice, reasonableness and conscionableness, and not oppose to law and public policy,” read the press release.
“Proved customs and practices as legal custom are enforce by all courts including the apex court and not necessarily only by customary courts. The nomenclature of a court may be styled as ‘customary court’, but if it is not a customary institution and only created by statutory enactments, it is entirely a case of misnomer,” it added.
The NBA stated that a three-tier hierarchy of courts, namely: Village Court, Subordinate District Customary Court, and District Customary Court was inserted in the Rules for the Administration of Justice and Police in Nagaland (Third Amendment) Act, 1984, leaving out Dobhasis' court from the purview of the customary courts, which was resented by the Dobhasis then.
“Except the village court, the proceedings of the other two customary courts are also provided to be governed by the spirit of the Code of Criminal Procedure, 1973, (CrPC) in criminal matters, and the Code of Civil Procedure, 1908, (CPC) in civil matters,” it stated, adding that an amendment had empowered the Subordinate District Customary Court to try criminal cases comprising 50 criminal offences defined under the Indian Penal Code, 1860 (IPC).
The third Amendment Act had prohibited several courts, including Dobhasis from taking up criminal cases triable by the two customary courts, stated the NBA. It added that the provisions of chapter IVA of the 1937 Rules should be repealed.