As the society evolves the gender justice and feminist jurisprudence has further enriched the politico-legal and social assets of our Naga society. Our history of civilisation once called by the Britishers as “barbaric” and adopted a pluralistic legal approach is now on the transition. The customary demarcation of rights and duties followed through ages may to the modern legal jurists appear to be harsh requiring reform. The biggest democratic nations of the world like India and the United States have however made special reservations in tribal governance. The Nagas are one such fortunate tribe to enjoy customary freedom along with the fundamental rights under the Constitution of India. In every issue, law must not be considered as a dictate, but it is a tool of social engineering to maintain the rule of law and equilibrium in the society. The Naga customs and usages are customary law for they have the sanction of law. They are as valid and authoritative as any other laws. However, this position does not provide immunity to the Naga customary law from judicial scrutiny and legislative reform. The state recognition of customary authorities as auxiliary to the administration expressly illustrates the faith of the state in the application and enforcement of customs in the management of the society at all levels of decision and policy making. It appears thus in Naga society, the customary authorities are supplemental advisory body in addition to the cabinet. However, under the Constitution of India there is no provision that expressly validate the advice of the customary authorities binding upon the government. Therefore, in the light of the state recognition of the customary authorities as auxiliary in administration, the words “unless the Legislative Assembly of Nagaland by aresolution so decides” appearing in Article 371A requires a study. Having said that, Article 371A can also be amended or repealed by the parliament and a justification for it may not be at all necessary. The Hon’ble Supreme Court has given numerous pronouncements in tribal and personal legislations enacted by the state. One such observation of the Hon’ble Supreme Court in Pannalal Bansilal v. State of A.P, (1990) 2 SCC 498) is re-produced as “In a democracy governed by rule of law; gradual progressive change and order should be brought about. Making law of amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages.”
Notwithstanding the rulings of the judiciary, the state can repeal or amend any provisions that are ultra vires before the verdict of the court, thus avoiding the inelegance. The state can also play delay tactics by substituting the provision in challenge with a modified version thereby compelling the petitioner with multiple and lengthy litigations. However, the instant subject is a social transition issue that requires a socio-legal study that would harmonise the conflict. The struggle for human rights and equality has lead to nationalism and therefore the word ‘change’ has created civilisation as well as history. The principle of traditional intergenerational equity is another aspect to be considered by all organs of the state and the society protecting the uniqueness of the Naga traditions without violating the constitutional rights. The state and the society are therefore encumbered with a responsibility to be copiously vigilant.
Kharu Nativus Iuris Amicitia (KNIA)