Share
1. Introduction
The Government of Nagaland is bringing out the Nagaland Civil Court Act 2023. Accordingly, on 3rd October 2023, a meeting was convened by the Deputy Commissioner Kohima Nagaland to get opinion of the different stakeholders (civil societies i.e. APO, AWO, Dobashis and others) on the above stated draft document. The Dimapur Bar Association (DBA) had already published their comment on the Draft Nagaland Civil Court Act 2023 on Sunday, October 1, 2023.
To be frank and precise, we as ordinary citizens with no formal legal background do not have much to contribute on the draft Nagaland Civil Court Act 2023. Even to talk about the customary laws, women may not have much to say since the customary laws custodians are males. However, the legal laws or the customary laws, when implemented, effects both gender (men/women) differently.
2.Life in the past
Our forefathers were self-sufficient in everything and followed a set of customs and traditions in their respective villages. No one really depended on another for their livelihood. Dignity of labour was at its peak. Every family member tilled the soil and made their own living. Theft or robbery were less known and thus, houses were without lock and key. The only lock was closing the door with two poles or bamboos crossing each other. Once they saw the door with two poles cutting across each other, it signified that there was no one in the house and it was a taboo to even go near the door.
Life was closely knitted together and hence, social crimes were minimal. However, if any social crimes were committed intentionally or accidentally, customary laws have been applied to deal with such crimes.
Even in Natural Resources Management, Distribution and Uses such as water resources for drinking or irrigation purposes, land use pattern for farming (terrace/jhum), they are all done based on customary practices in each respective villages. For example, for terrace farming which is permanent, one can cut irrigation channel passing through others’ land not having water user’s right. Even if the water is passing through one’s land, that person cannot use water if he was not having water user right (Dzüleva). One can borrow water from his neighbour’s field during paddy field puddling for a few hours with owners’ permission by the term “Dzüthu”. Even in forest resources management, one cannot extract life trees, stones etc without owners, permission. However, small dead woods or branches including wild vegetables can be extracted without owners’ permission. Cattle keeping was a part of the agriculture component in the past for manure, for meat and also other ritual purposes. As such, random free grassing by cattle was never practiced but territorially it was defined between khels for their own respective cattle’s grassing.
[bsa_pro_ad_space id=1] [bsa_pro_ad_space id=1]While talking about our tribal customary laws, each Naga tribe practiced their own set of cultures and traditions since time immemorial. These cultures and traditions are part and parcel of one’s daily living and at the end of the day, they become our “customary laws” too.
3. Customary laws are
- A set of unwritten laws that are part and parcel in solving most problems right from the Village Courts by Knowledgeable Customary law Custodians who are all males.
- So dynamic since time immemorial till date in solving problems. They are the de-facto right practice at the ground level
- By the application of customary laws, social problems such as sexual harassment i.e, rape cases, adultery, murder, theft/robbery, land dispute, boundary dispute, property inheritance by men and women, etc. are solved from the Village Court itself.
- Hence, Customary laws are so vibrant, dynamic, cost-effective and has become a part and parcel in solving everyday problems.
The Chief justice of India Mr G.K. Balakrishnan during his visit to Kohima in May 2007, said, “ Even the British had “never touched” the Judicial system of the Nagas as they found it superior to the Anglo-Saxon system. He further reminded the fact that a crucial aspect of the creation of the State of Nagaland through the Constitutional Amendment in 1962 was that of Article 371 (A) of the Constitution of India provided for safeguarding the interests and cultural identities of the Nagas” .
Our Honourable Chief Minister of Nagaland Shri Neiphiu Rio, had in the past, emphasised on codification of each Naga tribal diverse customary law that is being followed by the respective tribes as per previous newspaper reports.
4.The dynamics of customary laws
In this write up I would like to reproduce a few customary laws of the Angami Nagas (Viswema specific, the author’s earlier work on ‘Gender and Sustainable Livelihood” in collaboration with PRGA/ACIMOD, Kathmandu Nepal, 1997). At village level, customary laws were and are still so powerful, dynamic and cost effective in solving various kinds of social problems such as murder, theft/robbery, sexual assault like adultery and rape cases. Even in natural resource management, distribution and uses like land, water, forest resources, property inheritance by men and women, all conflicts and disputes are settled with the application of customary laws based on the custom and practices being followed over the years in the respective villages.
While customary laws relating to theft, murder, settlement of land/boundary disputes, use of land resources, etc. may be gender neutral, some customary laws such as sexual assault like rape cases, adultery, property inheritance by men and women may be gender biased
Under Social laws, there are two categories of offences
a) The first category of offence is where the punishment is fixed with no option to appeal in other court
b) the second category of offence is where the punishment is not fixed and the offender has the right to appeal in the higher court if not satisfied with the first judgement.
The first category of offences under social laws are crimes such as murder, theft, adultery and destruction of other’s property by fire (intentional). In this category of crimes, all punishment is fixed and no one can appeal in any other or higher courts.
5. Fixed punishment under social crimes
a) Murder
Murder can be categorised into two segments i.e. intentional murder and accidental /unintentional murder (biejobiemou). The severity of punishment for murder depends on the type of murder. But in no way a murderer had any alternative but to lose his life by the victim’s kinsmen. This, not only effects the murderer alone but also the whole lineage group. Therefore, right after the murder is committed, the murderer along with the whole lineage group hide and take refuge in some undisclosed location to escape the fury of the victim’s family till they are calmed down to a certain level with the intervention of knowledgeable and influential village leaders and customary law custodians. If the murder is committed between two villages then elders from both the villages along with neighbouring villages in the area take the responsibility to settle the case. The role played by the elders is very crucial here. Punishments for murder are : forfeiture/damage to murderer’s property, expulsion from the village for a life time in case of intentional murder and seven years in case of accidental/ unintentional murder. In case of unintentional murder, the murderer can be called back to join the village mainstream prior to completion of seven years. In any case, whether intentional or unintentional murder, the murderer had no right or provision to appeal in other court or higher court. In the present days, instead of excommunication the murder for life or seven years and to prevent the murderer from mingling with people, it is preferred to put him/her behind bars for safety reasons.
b) Theft/Robbery
In the past, robbery/theft were uncommon. However, if a theft was committed and got caught, the punishment depend solely on the nature of theft/robbery. Minor theft/robbery can be compromised easily through peaceful means with the help of elders as mediators and peace makers. However, valuable goods or animals are repaid with seven times the value one has stolen. In any case, the thief cannot appeal in any other court or higher court. Hence, the judgements pronounced is final and binding.
c) Adultery
Adultery is considered a serious crime and offense to the society. The tribal customary laws against adultery are fixed and in no way, one can appeal in the higher court. However, customary laws pertaining to adultery are gender-biased. While an adulterous man gains status and pride, it is not the same with an adulterous woman. For example, when a married woman while her legal husband is still alive and committed adultery she loses everything i.e. her property, jewellery and garments. She is sent back to her parents’ house in her under garments only. Contrary to this, if the man (husband) could sleep with another man’s wife, he earned to wear “Kesuni” with four lines of cowrie seashell. Thus, it was a status symbol of being courageous and of pride. The same is applied to the warrior as well.
Likewise, customary law allows shaming an unmarried girl/woman having an affair with a married man by shaving her hair, cutting off the nose tip or earlobe so that the marks stay with her for life for bringing disgrace and disrespect to the man’s family. Also, the society considers those men who assaults/abuses their wives as “cowards”, considering them as the ones who could not fight with their male counterparts as men should do but only assault/abuse the so called weaker sex, women. Therefore, the customary laws says it is a disgrace for men to mistreat their wives.
d) Rape
Rape is also a serious crime and offence committed on girls/women. The severity of punishment for rapist according to customary laws depends entirely on whether the act was committed with consent or by force. Also, whether the victim was a minor or an adult. In most cases, it is the general public who are vigilant and do social policing to identify the culprit. Raping a minor or women with special needs are ex-communicated for life time. However, other than minors, rape cases can be tried in village customary court and the judgement pronounced or decided must be abided to by the rapist with no option to appeal in other courts. Here, punishment for rape cases are also fixed. In present days, it is preferred to put rapists behind bars so that another act is not committed again.
6. No fixed punishment, commonly used in natural resource management, use and distribution
The second category of offense is where the punishment is not fixed and the offender has the right to appeal in the next higher court of the first judgement is not agreeable. These are land disputes, boundary disputes, conflict on water user’s right for drinking, irrigation purposes, etc. Settlement of these disputes involve traditional methods in two steps:
a) Through Peaceful Compromise – The most preferable method to settle all these disputes is through peaceful means and compromise, where, the elders play a vital role as mediators. This could be applied to individuals or clans or lineage group so as to avoid causing damage to both groups.
b) By Administering Oath: If a peaceful compromise could not materialise, the next and last resort is by taking “Oath”. The one who could take an oath on a larger number of lives of his kinsmen with the greatest sense of self confidence, the verdict remains in his favour. Depending on the merit and severity of the case, the content of an Oath is reviewed, judged and applied. It often starts this way, “If I tell lies, let me not live in this world, let some epidemic destroy me. This I swear in the name of God”.
An oath appeals to the super-natural power to bear witness to the truth of what one says. An oath, if taken proves a person’s innocence or honesty and the matter is decided/settled. In case of land boundary dispute, if an individual or the party cannot take oath with sufficient lives to prove their claim, the individual or party loses the case. No member will take a false oath unless one is sure that he is 100% convinced. Because taking a false oath is what people fear the most. In one incidence, people had witnessed that one person right after taking a false oath had bled profusely from his nose and died instantly. Therefore, taking an oath is believed to be sacrificing one’s own life. Similarly, taking a false oath in support of an untrue fact, a person is said to have placed himself/herself before the arbitrament of the mystical powers.
7. Customary laws and property inheritance by men and women
While talking about the Naga customary laws and its applications on settlement of various social issues or natural resource management, I would like to highlight a few lines on customary laws and property inheritance by men and women. In general, it is the men who own both the ancestral as well as the acquired property without any hassles. To be precise, land ownership by men and women, the lineage, the Khels or the village as a whole varies. The farthest forest land, river/streams are owned by the whole village community. Whereas the land nearer to village are owned by the khels or clans and the farm lands whether jhum or terrace are owned by individual families.
In general, one can own land (agriculture/forest land) in two ways, such as by inheritance (hereditary) and by way of purchase (acquired). The inherited property (Kayie) are passed down to male lineage of one generation to the next generation. It is a taboo to sell inherited property. The other category is the acquired property (lhikhru), that were acquired by the husband and wife after marriage through sheer hard work. In most Naga tribes, women cannot own land due to customary laws and practices or various reasons. In one instant, lack of land ownership right by women was justified by saying, “where there is smoke in the far flung end, that can become the home land of the woman tomorrow”. Women have no fixed habitat. They change their settlement with marriage. Therefore, land ownership is not granted to women in most tribal customs. However, an exemplary case of land ownership by women is practiced in Viswema village. All daughters in the family upon marriage is given a paddy field as “Opwu” and few barns of paddy as “Oshe”. Even when the daughter is married to a man from another village or community (tribe), a daughter from Viswema going out of her village still gets her Opwu and Oshe. Thanks to our forefathers for treating Viswema daughters in a very special way.
Today with the coming of Christianity, equal opportunity for education is given to both girls and boys. Women are also getting employed in formal paid sector, elevating their social status with higher education and better income. This has given them a high bargaining power and led them to acquire immovable property as cited in the case below:
The Angami women leaders appealed to Angami Public Organisation (APO) in May 1996 during their (APO) Silver Jubilee Celebration, that daughters may also be given acquired property if the parent so desires and that in such cases, no men/sons should object to it. (Source: AWO Silver Jubilee Magazine 1980-2005, P-7, 11. 5, a, b and c. An acquired property to be given to daughters was re-affirmed by the present APO President Shri Razouvotuo Chatsu on 4.7.2022 and the same was submitted to the Chairperson, Nagaland State Commission for Women (NSCW) for further action with the state government.
8. Conclusion
Our tribal customary laws and its application on various issues for solving problems are so dynamic, practical and realistic that most social crimes or conflicts are solved in the village customary court itself except a few unsolved stray cases that are brought to the area or the district customary court. Hence, tribal customary laws are cost-effective and user friendly in solving our problems. Therefore, tribal customary laws must continue in its present form even after the Nagaland Civil Court Act 2023 is enacted or put in place. The two may co-exist as two separate entities for solving various problems based on customary laws or the legal formal laws even though there may be or one can expect conflicting or contradicting points at times, which should not be a major problem. To sum up, since we have lots of educated youth these days, we may put emphasis on documenting each village’s customary laws and practices before knowledgeable persons are all extinct.
(Chozhüle Kikhi)
Viswema Village
Kohima, Nagaland