The inauguration of the New High Court Complex near Kohima can be termed as history in the making. The coming of the High Court to the State Capital is truly a significant development as it will hopefully be seen as the formal launching pad of the third pillar of democracy. While the State of Nagaland having decided early on to accept the modern political institution of parliamentary democracy, the judiciary however, was never treated as a component of the formal political process so much so that there was no proper check and balances of power especially at the hands of the executive. Hopefully this will change with the strengthening of the judicial system in the context of the State. The coming of the new High Court should likewise be seen as acceptance of the judiciary into the formal political process. For ordinary citizens in particular and for democracy in general, these are welcome changes. And as rightly pointed out by the Chief Justice of India K.G Balakhrishnan the inauguration of New High Court Complex will usher in a new chapter in the judicial era of Nagaland.
As far as the issue of power separation and its impact on customary law, the assurance given by the Chief Justice that this will not affect the justice dispensation of the state through Naga customary law is indeed, a demonstration of the middle path and must be welcomed. Coming from the Chief Justice himself, this goes to show that the Supreme Court has taken a more accommodative stand on the issue, which is a departure from the long held position it had taken. The Supreme Court it may be mentioned had in the past given several reminders to the State to strictly implement power separation. But that would have gone against the wisdom of the constitution itself, which has clearly stated in Article 371 (A) the assurance to protect the customary practices and culture of the Naga people.
While Justice Balakhrishnan profusely expressed his appreciation for Naga customary laws describing them as even superior to modern laws, nevertheless the point that he made about upholding rule of law remains the single most important necessity of any law whether it comes from customs or through modern jurisprudence. For that matter the ‘superiority’ of Naga customary laws does not mean that they are infallible and without reproach. There have been several instances from real experience where cases involving criminal offence forwarded to customary courts had not yielded positive outcomes in favour of the victimized. Further, traditional law is unwritten and un-precise, and tends to emphasize the position of the community rather than the rights of the individual. At the end, the point raised by the visiting Chief Justice about executing the rule of law remains a fundamental challenge for any system of law.
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. And this is also essentially the message from our Honorable Chief Justice, which is good news for democracy to thrive on in Nagaland.
