A strong nation require high intellect legislature, efficient executive and dynamic judiciary. The recent consultative meeting on the subject matter, separation of judiciary from the executive sponsored by the state is appreciated for it is also one of its awareness campaign where various opinion and mind are put across and obviously many who have attended the meet would also have no doubt to the concept of separation theory and practice in democratic set up like ours. Three organs namely Legislature, Executive and Judiciary are indispensable for more effective and proper functioning of a welfare state, for the fact that legislature makes laws, executive implements laws while judiciary acts as watchdog to ensure that law enforced for the time being is not violated and this concept of check and balance makes the state more dynamic and transparent in delivering goods to its subject.
The constitution of India under Article 50 provides that the state shall take steps to separate the judiciary from the executive in the public services of the state. It is appreciated that Department of Law and Justice have taken up steps including motivating people by distributing questionnaire to Administrative Officers, Bar Associates, Prosecution Officers, Dobasis, Judicial officers, general public and village councils as to why judiciary be separated from executive. A questionnaire reply so received by the department of law and justice as on 3-10-05, out of 54 response 49 are in favor of separation with 5 opposed to it. It is also a matter of record that the state has already taken a decision to have separation of judiciary from executive subject to safeguard the functions of customary courts in administration of justice.
In 1998, the state had officially issued notification thereby judiciary separation was given to effect; however questions of implementation remain with no answer till date. Perhaps many are not confused but to pacify that separation of judiciary simply meant for complete transfer of power to judicial officers, because today affairs, power are vested with Deputy Commissioner as per rule for administration of justice and police in Nagaland in 1937 which is still existing as the procedural law enforced in the state and thus concerned DC is vested with judicial power as judge as well as administrative power as head of the district with extra burden of duties and for such concentration of power it is desirous to transfer those judicial powers to the officers which is means separation of judiciary from executives, in the present context, the judicial officers will be directly appointed by the High Court through judicial competitive exams and also the entire administration of judiciary will be under the direct control of the High Court and cases be it of any nature will be dealt by only legal know how people other than administrative officers.
It has also come across the importance of customary practices while separation from judiciary is deliberated and acknowledging such importance the state have already brought an Amendment to the rules of administration of justice and police in Nagaland 1937, incorporating provision to set up customary courts at Village level, sub-division level and district level and that infrastructure to this direction are at slow pace.
Under this context, one’s mind should not be made to confuse with separation theory and practice for the reason remain that separation of judiciary from executives have nothing to do with Naga Customary law, its practice and its functioning, for it has been clearly enshrined under Article 371 (A) of the Constitution with particular regard to
1) Religion or social practices of the agas.
2) Naga Customary Law and procedure
3) Administration of civil and criminal justice involving decision according to Naga Customary Law and
4) Ownership and transfer of law and its resources.
And the state Assembly is at liberty as to what Act of Parliament effects the forgoing four points and such acts should be exempted by a resolution of state assembly so decides, while Naga Customary practices is on focus, it will be appropriate to the Department of Law and Justice to first of all codify and publish Naga customary practices of each and every village, inter-village, tribe, inter-tribes and common customary law practices and only after such refining, Naga customary court will become more efficient in dispensing justice to the people. For in absence of such code and written customary laws, judiciary system under customary practices may result in confusion and younger generations may repose loss of confidence. Although Naga customary oath is upheld by the Supreme Court of India, there are many other issues as well with the changing of time and many issues are beyond Naga customary law to handle and deliver justice and for such reason it is important to enforce implementation of separation of judiciary from the executive as already being notified, besides today we already have enough man power and capability to have all necessary infrastructure provided that the state run people have political will to pursue the matter with serious concern.
Neiko Kanuo, Advocate
