Nagaland Bar Association warns against creating statutory customary courts

• DIMAPUR —  The Nagaland Bar Association (NBA) has urged the state government to keep in abeyance the Rules for the Administration of Justice and Police in Nagaland (Fifth Amendment), Rules 2025 (in short, The Amendment Rules)—and revisit its provisions, with particular reference to customary courts.
• 
  
• In a representation submitted to Chief Minister Neiphiu Rio, who also holds the Law and Justice portfolio, on May 31 (copies of which were emailed to the media on June 9), the NBA expressed concern over the structural and procedural changes introduced by the amendment.
• 
  
• It highlighted that the amendment introduces a three-tier adjudicatory mechanism under Chapter IVA: establishing village courts, subordinate district customary courts, and district customary courts.
• 
  
• “The Amendment Rules prescribe the composition, jurisdiction and powers of the said courts,” it added. However, the NBA contended that the proposed changes are inconsistent with traditional Naga systems of justice.
• 
  
• It pointed out that customary law in Nagaland has always been administered through the village councils, dobashis, assistant to the deputy commissioners and the deputy commissioners.

Also read: Nagaland introduces major structural reforms to customary court

• “The point of note is that the application of customary law begins in the villages, followed by reference to the dobashis by the deputy commissioner and his assistants and further processes to the deputy commissioner and the hon'ble high court.
• 
  
• “Customary law is administered in the villages by the application of the customs and usages of the villages/communities. Naga customs and usages do not envisage village courts, subordinate district customary courts and district customary courts, as set out in the Amendment Rules of 2025,” the representation read.
• 
  
• According to the NBA, the constitution of the village court and the removal of its members by the government are against customary laws and usages. “The village councils have been constituted according to customary practices and usages. There is no role of the government in the constitution of the village council, except for its formal recognition,” it maintained.
• 
  
• The Bar further noted that the subordinate and district customary courts would derive their authority through government appointments and would operate across subdivisions and districts, respectively. Both the courts and their respective jurisdictions are new creations, it added.
• 
  
• Another concern flagged by the NBA was the requirement for the new courts to function in the “spirit” of formal laws such as the Code of Civil Procedure, 1908, and the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
• 
  
• “By the use of the nomenclature ‘customary courts’, a class of statutory courts has been created. The said courts are to be manned by appointees of the government.
• 
  
• “The Amendment Rules empower the ‘customary courts’ to exercise authority in the manner they choose. Courts must have defined and laid down procedures. This is the hallmark of the rule of law,” it maintained.
• 
  
• Also, the NBA raised concern over the amendment’s potential to blur the lines between the Executive and the Judiciary. “The doctrine of the separation of powers envisages a Judiciary separate from the Executive. The Amendment of 2025 is a step backward from the separation of the Judiciary from the Executive, already in place in the state,” it stated.
• 
  
• Accordingly, the Bar called upon the state government to “keep in abeyance the Amendment of 2025 and revisit its provisions,” stating that the changes could compromise the integrity and preservation of Naga customs and usages.
• 
  
• “The contradiction in the objective of protecting Naga customary laws and usages and the creation of a new class of statutory courts, with the nomenclature of ‘customary courts’, is apparent,” the Bar noted.
• 
  
• Naga customary laws and usages, it warned, should not be whittled down and/or lost by creating statutory courts with the nomenclature ‘customary courts.’