Nagaland Bar Association warns against creating statutory cu
Nagaland Bar Association warns against creating statutory customary courts
Nagaland Bar Association has urged the State to pause 2025 Amendment Rules, warning that statutory ‘customary courts’ are a threat to traditional Naga justice systems.
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.
“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.’
