By M. Ramunny (EMN)
To any forum like the present one which is discussing the welfare of the Tribal people, the constitution of our Republic is a heartening document. I am extremely happy today as the sessional Chairman is Shri I. Sashimeren Aier. He has personally played an important role even before Independence. The safeguards in our Constitution for the tribal people, has been based on the liberal policies which had already taken root in the mind of the great leader Shri Jawaharlal Nehru. In his now famous letter written on 4th August, 1946, almost a year before Independence, to Shri Sashimeren Aier, and to Shri T. Sakhrie, Nehru has said, “I see no reason whatever why an extraneous judicial system should be enforced upon the Naga Hills. They should have perfect freedom to continue their Village Panchayats, Tribal Courts etc., according to their own wishes. Indeed it is our wish that the judicial system of India should be revised giving a great deal of power to Village Panchayats.” He discussed many other policy matters on tribal welfare in this letter. But since this seminar is concerned only with the customary laws, I have quoted only that paragraph.
We shall divide our examination of the problem of constitutional development and tribal laws into two parts. One, the pre-independent era and the other, the post-independent period.
An important feature of the historical policy of special arrangement for the administration and development of tribal areas, both in the British period and today, was the recognition that tribal areas required special arrangements for their administration and development and that some of them should not fall within the normal legislative provisions. From the earliest times, there were arrangements made by the British to see tribal areas do not come within the purview of the normal laws of the land.
Dr. Verrier Elwin has commented “The fact that the Naga area came under these regulations did not mean that it was separate from other parts of India ; or that its inhabitants were receiving treatment different from that given to other tribal people. In actual fact the Nagas were in the same situation as many millions of others”.
The province of Assam was created in 1874 in which was included the Naga Hills District. Previously it was under the jurisdiction of the Lt. Governor of Bengal. The most important and the earliest Act was the scheduled Districts Act of 1874 “which made special provisions for undeveloped tracts”. A number of scheduled Districts were formed, one of which was Assam Valley itself including Sylhet. The Act enabled the Government to notify what laws should be enforced in these scheduled Districts. Assam Valley before long was descheduled and was taken out of this category. This kind of treatment to the ‘undeveloped tracts’ recognised that the hill areas had to be treated differently. The elaborate procedures of normal laws were considered cumbersome and unnecessary. What was needed was a simple, personal, humane administration.
After recognising the necessity for simplification of legal administration, another step was taken in 1880. The Frontier Tracts Regulation II of 1880 provided for excluding operation of laws which were considered unsuitable in border areas. Cr. Pc. was considered unsuitable. C. P. C. had never been enforced in the hill areas.
Simpler regulations and technique of administering justice’ were devised. Village Councils presided over by the local Chief or Headman or chosen by the people themselves were encouraged. Lawyers were not admitted. The Village and Tribal Councils later developed considerably in these areas.
Further changes took place in 1919 when the reforms under the Government of India Act was enforced. According to this Act, the Governor-General in-Council was authorised to declare any territory in India to be a “Backward tract”. It will be noticed that the `undeveloped tracts’ now changed to “Backward tract”. But the intention was the same. These backward tracts were distributed in five provinces of British India covering a population of more than ten millions. Naga Hills was one of them. Within their boundaries, the Governor-General could direct that any Act of the Indian legislature would not apply or apply with modifications. In addition, the Governor-General could empower the Provincial Governors to give similar orders regarding Acts passed by local legislatures. Proposals for expenditure in these tracts did not have to be submitted to vote and no question about them could be asked without the Governor’s sanction. It was protection to the administration also. In a modern democracy this may not have been acceptable.
Then came the Simon Commission in 1929. The members met the leaders of the various tribal people. The honourable members of this Commission took exception to the word “Backward”. Sir John Simon is reported to have called it a ‘nauseating’ word while Mr. Cadgan described it in the House of Commons as ‘misleading’.
Instead of “Backward tracts”, the Commission proposed the establishment of “Excluded areas” which were of two categories, Excluded and partially Excluded. There has been a lot of misunderstanding about this word “Excluded”. Both these categories were excluded from the competence of the Provincial and Federal legislatures where there was an enclave or a definite tract of country inhabited by a compact tribal population, it was classified as “Excluded Area”. Where the tribal population was less homogeneous but was still undeveloped and substantial in number, it was classified as “Partially Excluded”. The administration of the “Excluded Areas” was vested in the Governors acting in their discretion and that the “Partially Excluded” areas were under the control of the Ministers subject, however, to the Governor exercising his individual judgement.
The Simon Commission in its report has given their reasons for excluding the main tribal areas from the general coustitutional arrangements. The report reads as follows : “The stage of development reached by the inhabitants of these areas prevents the possibility of applying to the methods of representation adopted elsewhere. They do not ask self-determination but for security of land tenure in the pursuit of their traditional methods of livelihood and the reasonable exercise of their ancestral customs. Their contentment does not depend so much on rapid political advance as on experienced and sympathetic handling, and on protection from economic subjugation by their neighbours.”
The scope of this seminar does not allow me to go into details about the report of the Commission on other aspects of administration, financial assistance, representation etc.
As a result of these reforms of the 1930’s from the 1st of April, 1937, the Naga Hills District, the North East Frontier Tract, the Lushai Hills and the North Cachar Hills etc., became ‘excluded areas’ within the province of Assam and were administrated by the Gover-nor of Assam acting in his discretion, through the executive authority of the Province extended to them. This meant that no Act of the Central or Provincial legistature could apply to the Naga Hills District unless the Governor so directed and he was empowered to-make Regulations for its peace and good government.
This was the situation on August 15, 1947. At the initial stages of independent India the same arrangement continued except that the discretionary powers of the Governor were withdrawn and henceforth he acted on the advice of his Ministers.
When the Constitution of India was promulgated in 1950, we find that the “Excluded” and “Partially Excluded” areas disappeared. Their place was taken by Scheduled or Tribal areas ; while an elaborate list of communities known as Scheduled Tribes was later notified in a series of regulations. All the Naga groups were included in these lists.
Our Constitution continued the former arrangements but modified them and enlarged their scope. The relevant sections 91 and 92 of the Government of India Act 1935 had done nothing more than exclude the areas concerned from the operations of the legislatures and gave the Governor certain specific powers. But in the 1950 Constitutions of independent India, the Fifth and Sixth Schedules were more detailed and specific. The Fifth Schedule applied to areas and Tribal people throughout India ; while the Sixth Schedule made specific provisions for the Hill Areas of Assam. According to the Fifth Schedule, laws will normally apply unless the Governor directs that they shall not do so. This is quite different to what it was before where the Acts will not apply unless the Governor directed that they should do so.
During the British period the Governor was authorised in a general way to make regulations for the peace and good government. Everything depended on the Governor and the imagination of the Secretariat to bring in regulations for the welfare of these people. But in the new Constitution, special attention was given to details, particularly to the transfer and allotment of land and the control of money-lending. While too much responsibility was put on the shoulders of the Governors who were very busy people, the Constitution of India provided for Tribal Advisory Councils, three-fourths of which had to be tribal people.
In the Sixth Schedule, the Hills districts of Assam came under a different arrangement. They were called Tribal Areas and enjoyed a certain measure of autonomy, particularly regarding their customary laws. A fairly large number of subjects were reserved to the District Councils under the overall control of the Governor acting in consultation with the Ministers. This Schedule was severely criticised by the tribal people as it did not carry sufficient autonomy. The powers of the District Councils included authority to protect the people’s land, management of forests (except reserve forests), use of canals and water course, regulation of shifting cultivation, establishment of Village Councils, appointment of succession of Chiefs or Headmen, the inheritance of property, marrige laws and social customs. Any laws made must be submitted to the Governor and receive his assent before they could become effective.
In 1960 when the 16 point resolution for the formation of the State of Nagaland was put up to the Prime Minister, the 9th resolution said that each tribe shall have the following courts of justice—the Village Court, the Range and the Tribal Court. This was agreed as it fell in line with the thinking of the then Prime Minister, the Government of India and the Parliament and finally Article 371A of the Constitution, which was brought into force by the Thirteenth Amendment Act of 1962, stipulated the following :—
The most important aspect of this provision in our Constitution is that the power for bringing in any of the laws regarding the above subjects passed by the Parliament into Nagaland has been given to the elected representatives of the State. Earlier in the British period, the entire power of bringing in laws or denying Provincial or Central laws to tribal areas, including Naga areas, was vested in a sole individual the British Governor. Later it was the Governor in consultation with the Ministers. But he could use his discretion. At one stage it was the Governor and the Ministers and today it is the people’s representatives.
Thus we have seen that throughout the century the Administrators realised that in tribal areas their special customary laws had to be protected and preserved and different methods were adopted. Our own Constitution given by the people of India have finally left it to the people of the tribal areas to decide what they want to do with their customary laws.
It is now left to us to decide which laws have to be preserved and which customary laws have to be discontinued.
