The legal system for mediation as a dispute resolution mechanism will depend on common laws and Naga customary law.
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What prompted me to write this article was a recent news item which reported Hon. President of India, Smti. Droupadi Murmu, pitching strongly to extend the dispute resolution mechanism to rural areas so that Panchayats are legally empowered to mediate and resolve conflicts in villages. The Hon. President was speaking during a conference on “Mediation”, in the august presence of Hon. Law Minister Arjun Ram Meghwal, the CJI Sanjiv Khanna, and CJI-designate B.R. Gavai. She also said that such a move could lessen the burden on the judicial or civil courts and can open up developmental pathways contributing to Viksit Bharat 2047. The conference was probably consequent upon the Mediation Act 2023.
Mediation in India has so far been fragmented without legal status. The legal system for mediation will depend on common laws and customary laws. Readers are already aware that Nagaland is exempted from the Panchayat system, but we have the village council system manned by village council members and gaon boras. The village councils are responsible for local self-governance at the village level. It is encouraging that the customary system is prevalent in Chhattisgarh, Jharkhand, Madhya Pradesh, Odisha, Maharashtra, Gujarat, and Rajasthan of mainstream India. Hon. President of India, being a tribal herself, must have been aware of the benefits derived from the customary system of jurisprudence. Back home at NER (North East Region), all the eight North Eastern states practice customary law to a variable extent under various provisions. Though still not comprehensive, Nagaland has the strongest customary law system provided through Article 371(A)(i),(ii). Readers will be aware that the Nagaland Government had passed a Bill in March 2025: The Administration of Justice and Police in Nagaland Act 1984 (Fifth Amendment Bill 2025), in particular amendment of Chapter IV(A) of the 1984 Act. The 1984 Amendment remained dormant because of the absence of Gazette Notification. The near similar 2025 amendment has been notified, therefore, operational and deals with the customary courts envisaging a three-tier system:
1. The Village Courts
2. Subordinate District Customary Courts
3. District Courts.
In the Panchayat system too, a similar three-tier system exists; these are the Village Panchayat, the Intermediate Panchayat, and the District Panchayat. These provisions were added through the 73rd Constitutional Amendment Act, 1993. With the passage of time, who knows, a state-level customary court or tribunal may become a necessity to deal with triable inter-district cases.
At the home ground, the Nagaland Bar Association had raised concerns regarding the applicability of the Act. To my observation, the concern was raised out of apprehension rather than logicality of the application of the Bill. The state government's move indicates a commitment to streamline these courts and reflects an initiative to strengthen traditional policing (a long-felt need) to ensure justice is administered in accordance with triable indigenous Naga customary laws and practices. We must think in terms of changing times and the emerging dynamics of living. That Naga history is unique has become a popular statement, not without reason. Our uniqueness can be defined in many ways, but our traditional system of governance and policing is the most important uniqueness of all. Whereas in ancient times every Naga village was an independent institution, today we live in an inter-dependent atmosphere. Agreed, some redundant traditions need to be done away with, but the ones that identify us, like our customary system, need to be streamlined for effectiveness and be preserved. Our traditional attires may identify who we are, but it is our traditions and customs refined through the ages that identify what we are. Nagas were regarded as hardworking, but where are we now? We talk about our rich tradition and cultural heritage, but have we not become overwesternised? In this context, Nagas should deeply reflect and appreciate that the government of the day has taken renewed efforts in the collection and compilation of all tribal customary laws and procedures.
The goodness of the customary system is that it is more humane, affordable, and fast track and, importantly, it takes into account the well-being of conflicting parties and also the effect of the conflict on the community as a whole. Unfortunately, today we see a crisscrossing of customary and modern civil and criminal jurisprudence. One does not know where one begins and ends. A definition of areas must be set; for example, what is triable in customary law must be defined and tried within that system only. Petty issues and crimes, property disputes, and marital conflicts, for example, can be left to the customary courts. It is heartening that the Bill hints at such demarcation, and prudently so.
Traditionally, Gaon Boras and Tobashis manning the village Gaon Bora Courts and Tobashi Courts respectively were selected or appointed based on their experiences and knowledge of local customary laws alone, without any formal qualification. At the village level, selections principally were clan based. As mentioned above, Hon. President of India in her speech on Mediation said, “People have become more educated and know more and therefore, demand more.” We must indeed become progressively progressive. Our society too has become more educated and knowledgeable. In fact, we are the third highest in terms of literacy (95.7%) in the country. Therefore, in the context of this changed scenario, our customary system also needs to be streamlined. From the concept of village living, our settlements are increasingly becoming cosmopolitan and multiethnic. Therefore, customary dispensation has to be adjusted accordingly. It is now imperative that Gaon Boras and Tobashis also must have some formal qualifications. Gaon Boras should have read at least up to Class-X standard and should have certificates in customary laws and procedures. Tobashis, on the other hand, should have read at least up to 12th standard and should also have diplomas in customary laws and procedures. Apex Tribal Hohos or organisations can be authorised to impart trainings for certificates and diplomas on Naga customary laws and usages.
In Nagaland, constitutionally, five tribes, Naga, Kachari, Kuki, Garo, and Mikir, have been classified as Scheduled Tribes by Presidential Order of 1979. The Naga family is comprised of 15 recognized tribes. Within Naga tribes, customary procedures and usages vary, and therefore, there is a need for proper data collection and codification of our customary laws to give them structured clarity and legal sanctity. It is heartening that the government of the day has compiled customary laws of all the tribes. Now the task will be structuring them into a codified form. To this end, I feel the Bar Association of Nagaland more so Naga lawyers should chip in their learned minds rather than being apprehensive. It is a constitutional right of the Nagas given under Article 29(1) and 371(A) of the Constitution of India. Provisions of Article 371(A)(i);(ii) comprehensively cover both civil and criminal jurisprudence according to customary laws and usages. Even Hon. Supreme Court Judge, Justice Sanjay Kishan Kaul, said as the honoured guest at the closing ceremony of Hornbill Festival 2022 that Naga customary laws and traditions were unique and protected under the Constitution of India, and to which even the Supreme Court has been recognizing and upholding in its verdicts. To me, compilation and codification of our customary laws and procedures should have been done during the formative years of statehood rather than continuing with the primitive system of adjudication based on oral narration, given that the provisions of Article 371(A) have been very clear. Lack of a system of registry of indigenous inhabitants, enumeration of other STs and permanent settlers (settled prior to statehood) is another glaring example of procrastination. They should have been done in the formative years of our statehood. Alas, state stakeholders and successive governments have slept over the issues. It is only under the present government and the able statesmanship of the incumbent Chief Minister that things are taking shape. India is already inching towards the top economies of the world and the ambitious plan of becoming a developed nation by 2047 (Viksit Bharat 2047). Can we Nagas also dream of Developed Nagaland by 2047? Our literacy rate and education, our good health parameters, our natural resources lying in wait, our potentials of AgroForestry and so many other good attributes make me confident that we can. I may not be alive in 2047, but if I can help contribute to that wonderful event, I will by all means. Importantly, if we Nagas want to be in that boat to being a developed state by 2047, people, particularly the youth, have to become receptive. It will not have to be just infrastructure and economic development but also of human development, a human development which is moved and cultured into assimilating certain attitudinal principles conducive to moving forward. Kuknalim!
Dr. Chumben Murry
Former Minister