Not Quite The Be All And End All of It

The job left unfinished in Article 371A

There is no doubt about the fact that Article 371A of the Constitution is important for the preservation of the customs and traditions of the Naga people, but the State or the Centre are still yet to realise the need to systematically educate the mass with regard to the provisions and prohibitions of Article 371A. The negligence of constitutional authorities towards this issue continues to lead to instances where judicial conscience is taken by shock, one example being the recent case of “State of Nagaland v. Pongchinsonla and others” in the Tuensang District Court.

On 21.04.2021, Shri. KumdilongKessen, the Ld. First Class Judicial Magistrate at Tuensang District, in passing the final judgmentthe above case, sentenced eight accused women to one year of imprisonment. To state the facts in brief, on 05.02.2021, at about 9:30AM, the Tuensang Police Station received a phone call reporting that a woman was seen half naked near the roadside in a village. When the police arrived at 11AM, the woman was seen already clothed. Thereafter, it was found out that the victim was walking half naked on the road as a customary penalty whereby the hair of the woman had been chopped off with scissors and she was forcibly made to undress her clothing. The above punishment, or more specifically, public shaming, was imposed against merely having an extra-marital affair. All the eight accused were charged under Sections 342, 352, 324, 354, 143 and 149 of the Indian Penal Code.

What is more surprising than the offences is the kind of defence taken by the accused persons before the court. As recorded in the judgment, it was argued that the offence under Section 354 of the IPC would not attract since the victim was aware that extra-marital relationship brings bad name in the society as per “customary law” and that the acts of the accused persons were based on the customary practices duly recognised by Article 371A of the Indian Constitution.

Dismissing the above contention of the counsel for the accused persons, the court observed that the villagers took the law into their own hands and delivered justice in “barbaric fashion” through their kangaroo court. The court’s strong condemnation of the entire situation can well be understood in its words “Despite the advent of the modern-day dispute redressal system in our society, the village folk choose to punish the victim through their kangaroo court. it is such an inconceivable fact to even think that the women folk would go to the extent of chopping off a lady’s hair, stripping her and parade her naked on the roadside.”

It is a fact that such punishment as in this case is not a part of the Naga customary law. The main punishments in Naga customary law which are actually practiced today are boycott, excommunication and banishment or exile, which too have been held to be illegal by the Hon’ble Gauhati High Court, Kohima Bench.During my conversation with Mr. Kahuto Chishi Sumi, the village council chief of Hevishe village in Dimapur District and an active social activist, he stated that, traditionally, Nagas are tribal people who, for centuries, have been content with village life, not even caring about what happens in the neighbouring villages, let alone towns and districts, and this is a fact known to everyone who is familiar with even an iota of Naga history. In such a case, to chop off the hair of a female villager and let her walk naked on the road, is not only a misadventure on the part of the offenders, but also illogical with respect to traditional Naga lifestyle.

One of the judicial members of District CustomaryCourt at Kohima had stated that Customary Courts have, in time, distanced themselves from trying criminal matters, and only try civil matters, especially those pertaining to land, property and marriage. He had stated that there is no conflict between the laws of India and customary laws and that for a person living a village life, it is very common, usual and practical to approach the Customary Court instead of Civil Court in civil disputes. According to this member, the philosophy which the Customary Court follows or should follow is to resolve a dispute through dialogue and at a personal level irrespective of the nature of the dispute, in order to prevent future escalation of vendetta or ill-feelings. With respect to adjudicating marital disputes, public shaming by causing degradation to a person’s character and social respect, is never a part of the Naga customary legal system.

On the other hand, Mr. Kahuto Chishi Sumi states that the presence of Customary Courts or Dobashi Courts have in fact had their interferences in Indian penal law. Reportedly, in many cases including those of major criminal offences, a kangaroo court may take up the matter and amicably settle the dispute between the accused and the victim’s family, whereas the same might be completely impermissible in Indian criminal law. Quite surprisingly, the State often distances itself once the matter is under the consideration of the Dobashi Court.

It is, thus, clear that there lacks clarity between the legal infrastructure of the State and those of the villages. The major reason behind this is the absence of codification of customary laws. The wisdom behind Article 371A of the constitution can only be realized once there is codification of customary laws. Codification would give rise to quality interpretation and clear jurisdiction. The State has enough infrastructure to appoint teams comprising jurists and law students to towns and villages in Nagaland who could, in consultation and association with local Dobashi members, put these customary laws into writing. Such documentation can be protected by the Department of Social Welfare of such state and also by the Ministry of Tribal Affairs. If there is a locally renowned decision of a Dobashi Court, the same may also be written down for reference of other Dobashi Courts of other tribes for the development of their customary law.

Even if the acts committed by the offenders in the Pongchinsonla case (supra) have been admitted by the offenders in open court and allegedly do not form a part of Naga customary laws, the non-codification of customary laws makes it difficult for a fellow villager to understand what is permissible and what is not. The court has clearly noted “The accused persons in their guilty statements stated that in the year 2018, the women folk of the village passed a resolution wherein they decided to punish adulterous women as per customary practices. However, the misconceived notion of empowering oneself with the so called “village resolutions” to do barbaric acts like this one should be avoided at all cost.”

It is a known fact that in 2018, the Supreme Court had decriminalised adultery vide its judgment in Joseph Shine v. Union of India, and the same was well reported and circulated throughout the country and the world. It can also be assumed that a judicial member of a customary court or a kangaroo court would be reasonably aware of central penal laws, at least as far as landmark and paradigm changes are concerned. In such a case, how could a kangaroo court allow the penalty arising out of a civil dispute to be so shocking and grave that the orchestrators or witnesses of such penalty would subsequently be charged with criminal offences under the Indian Penal Code?

The benefits under Article 371A of the Constitution do not extend to a kangaroo court whereby it could allow, order or conduct a so called “customary punishment” especially when that very act of punishing is punishable under the Indian Penal Code.

The Pongchinsonla case (supra) is an eye-opener to the State as well as the Centre that systematic codification of customary laws is urgently necessary for states where customary laws play such a vital role in public life.It is also equally important to lawfullyintervene in other instances in the form of educating local people regarding such limitationsin powers of customary courts so that no space is left for potential offenders to violate someone’s fundamental right justifying the same as “customary” or “village resolutions”.    

Sourjya Das
The author is an Advocate at Calcutta High Court. He is frequently involved in providing legal services to the Chakhesang and Sumi tribes in Nagaland. His email id is sourjyadasadv@gmail.com