Recently, it has been brought to my notice the government notification of 27th February 2014 by which the earlier rule for appointment of Gaon Buras (GBs) has been amended raising the eligibility age for appointment of GBs to 40 years. The aforesaid rules, to say the least, violate the basic structure of Naga customary law and Procedure(particularly the hereditary practices of Ahngship/GBship of Konyak, Sumis and Kuki tribes) and Article 371 ‘A’ of the constitution.
At the risk of repetition, the celebrated Article 371 ‘A’ of the constitution in a nutshell reads:- (a) No Act of Parliament shall apply to the State of Nagaland in respect of:- (i) Religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) Administration of civil and criminal justice involving decisions according to Naga customary law, (iv) Ownership and transfer of land and its resources.
It is now a well settled principle of Law that customs and usages practiced from time immemorial has the force of law. Hereditary practices of GBship/Anghship by the Sumis, Konyak and Kukis has been in vogue from time immemorial. The reason surrounding the hereditary practices of GBship is founded on sound public policy.
Naga customary law is unwritten. The knowledge of customary law and its usages has been handed down from generation to generation; from great grandfather to grandfather, grandfather to father and father to son and so on. Therefore, in Sumi custom there is no age bar to hold the position of hereditary GBship. The only qualification is that he must be married and be capable of shouldering responsibility and have a house (thatched) of his own and cultivate his own jhum field.
Will a hereditary son wait for 40 years to succeed his father, in the event of his death or infirmity? GBs discharge grass root level administration of justice. If there is no GB in particular khel or clan for 40 years there will be a vacuum in the administration of justice leading to chaos and anarchy. No doubt, it is inherent in the State Government to frame rules for smooth administration. But the rules that are framed must be consistent with the Provision of the Constitution. In this case, it must be consistent with the Customary Practices and usages and Article 371 ‘A’ of the Constitution (supreme law of the land).
India occupies a proud place of being the largest democracy in the world, constitutionally wedded to the rule of law. The governance is not of the men, it is the rule of law. It is unthinkable to frame any rule that dehors the Constitution.
The rule in question so framed, without application of mind and in utter violation of Naga customary Practices and Usages and Article 371 ‘A’ of the constitution of India, suffers from the vices of arbitrary exercise of power, is invalid and void. It is void abinitio.
Justice H.K.Sema Former President, Sumi Hoho & Former Judge, Supreme Court of India.
