The series of meeting that has taken place over the last week under the government’s initiative involving the Deputy Commissioners, Gaonboras and Dobashis on the issue of separation of the executive from the judiciary is a step in the right direction. In this regard, agreeing in principle to set up a Naga customary court, while implementing the exercise of separation of judiciary from executive is welcome news. Such an arrangement also makes sense as it will ensure the effective implementation of Article 371 (A) of the Indian Constitution, under which the Nagas are allowed to keep their own customary laws and practices.
The forward movement on what seemed to be an intractable problem is therefore both encouraging and noteworthy for the simple reason that the State Government may have finally come to a decision to go in for power separation by adopting a agreeable formula between the two extreme positions of those who want customary law to prevail and the pro-changers who are losing faith in the old way of dispensing justice. If it may be added here, the debate on power separation has over the years been a very close call with both positions holding some valid justification. In this sense it would have been unfair to have decided on a zero sum game formulation where only one side wins. In an evenly poised debate such as on power separation, taking a middle position therefore is a fair, reasonable and acceptable verdict on what has been a protracted divide that has defied a solution many years now.
The present DAN government under the leadership of Chief Minister Neiphiu Rio needs to be appreciated for the kind of initiative it has taken to try break the deadlock and also for taking the confidence of the general public by way of taking their opinion on the issue. The series of consultation undertaken may have finally borne fruit with the government in a better position to now take a consensual decision. For the proponents and those who are opposed to separation of powers, it will be now advisable to let go of their extreme positions. Rather both sides should now prepare to accept a more practical formula wherein separation of judiciary can take place and at the same time the traditional customary practices can co-exist by giving statutory recognition to it.
There is a misgiving among the general public that the only reason of delaying this constitutional right to the citizens of Nagaland is that the politicians and the bureaucrats in the State do not like to check corruption and misappropriations of government money. Whatever the case may be, as a prerequisite to ensuring justice in a democratic society and to evolve an independent judiciary, separating the judiciary from the executive is a requirement. For an effective and functioning democratic system the three organs as an entirety must act independently of each other. While the best practices of Naga customary laws needs to be recognized, a via media must be worked out to bring together the merits of age old wisdom with the finer points of modern jurisprudence. No one should have any ground to complain about benefiting from the best of both worlds.
