This press release is directed to the demand of the Dobhasis for constitution of customary courts which was published in some Dimapur based local English dailies on 28-10-2021.
For the sake of clear conception, it may be mentioned to know that "customary court" is an institution established by operation of traditional social customs and practices. A village may be newly established, but its institution is traditional and customary practice, and hence, the village court is a customary court and administer justice according to customary law and customary practices. A custom to be enforceable as a legal custom must have the antiquity of its origin, continuity, consistency and certainty in practice, reasonableness and conscionableness, and not oppose to law and public policy. A village court is a customary court, in as much as, it is a traditional institution perpetual in its existence and administers justice according to the customs and practices of the village. The statutory recognition of the village court as customary court has been provided by the Rules for the Administration of Justice and Police in Nagaland, 1937 (1937 Rules). By legislation, vide 1937 Rules (Second Amendment) Act, 1982, (Nagaland Act No.3 of 1983), the Dobhasis are also empowered to administer justice retrospectively with effect from 1st December, 1963, and they are also governed by customary procedures and customary practices. The Dobhasis' courts are therefore creatures of law as oppose to customary institutions and customary courts.
Proved customs and practices as legal custom are enforce by all courts including the apex court and not necessarily only by customary courts. The nomenclature of a court may be styled as "customary court", but if it is not a customary institution and only created by statutory enactments, it is entirely a case of misnomer. A court created by statute may be empowered to administer Justice according to customary procedure and customary practices, even so, the court being a creature of the statute, and not established by operation of tradition and customary practices, it is not a customary court. The District Customary Courts are vested with appellate as well as original jurisdiction in both civil and criminal cases, the civil original jurisdiction being unlimited, however, the orders passed by them are provided to be final without avenue for appeal or revision.
An entirely new chapter “IVA - Customary Courts" comprising Rules 39-68, providing 3-tier hierarchy of courts, namely, (I) Village Court, (ii) Subordinate District Customary Court, and (iii) District Customary Court, have been inserted, among other amendments, by Section 30 of the 1937 Rules (Third Amendment) Act, 1984 (Nagaland Act No.1 of 1987). The amended Rules were enforced by Notification dated 14-03-1989, however, by the same notification, chapter IVA was excepted from the enforcement which apparently suffers from several legal infirmities and lacunae. To be cited herein briefly, the Dobhasis' court have been left out of the purview of the customary courts leaving them in embarrassing and shady position which was resented by the Dobhasis of those days. Except the village court, the proceedings of the other two customary courts are also provided to be governed by the spirit of the Code of Criminal Procedure, 1973, (CrPC) criminal matters, and the code of Civil Procedure, 1908, (CPC) in civil matters. The two customary courts are vested to exercise powers not exceeding those of Magistrates Second Class and First Class respectively as defined in the CrPC. The amended rules also empowered the Subordinate District Customary Court to try criminal cases comprising 50 different criminal offences all defined under the Indian Penal Code, 1860 (IPC), the commission of the offences some of which are punishable with imprisonment which may extend up to 7 years. However, so far as powers to pass sentence for imprisonment are concern, under the CrPC, the Magistrate Second Class is empowered to pass sentence not exceeding 1 year imprisonment, and the Magistrate First Class is empowered to pass sentence not exceeding 3 years imprisonment. The two so named customary courts are also provided to be presided over by Presiding Officers having judicial experience in the case of the former, and in the case of the latter, having experience in the trial of suits and cases in accordance with laws and rules in force in the State. Rule 22D was inserted by Section 11 of the Third Amendment Act, and this rule prohibited the courts manned by executive officers, namely, the DC, ADC, and Asstt. to DC, the judicial officers of regular courts, namely, the District & Session Judges, Judicial Magistrates, and also the Dobhasis from taking up criminal cases triable by the two customary courts.
In the three-tiers hierarchy of customary courts, except the village courts which are rightly protected as customary courts, the other two so named customary courts are wholly unknown to the customs and practices of the native tribes in the State, and these courts are purely new innovations devised and created only by the rules newly inserted in chapter IVA. The CrPC and CPC are unknown to the local customs and practices in the administration of justice, and the proceedings of the two customary courts to be governed by the spirit of CrPC and CPC are beyond comprehension by any reasonable person. The history of draft of the bill in this legislation by amendment has its peculiarity. It was during early 1980s, an officer was deputed to England by the Government of Nagaland to collect first hand information on the system of various courts under the common law system. Apparently, it was based on erroneous belief that there was the system of customary courts and customary law under the English common law system. On the contrary, unified judicial system under one national law had been introduced by the Judicature Act, 1873-1875. It is relevant to mention that the Third Amendment Act is as early as the year 1984, however, the amendment was made into legislation as late as only by the Nagaland Act No.1 of 1987, and it was thereafter, partially enforced as late as by Notification dated 14-03-1989. The time taken was mainly attributable to the objection raised from various sections of the society including the legal fraternity and also the Dobhasis that prompted the reservation of the provisions of chapter IVA from enforcement. Had not such reservation from enforcement was made, the aged old legal sanctity of the administration of justice starting from the village court at the bottom up to the district court would have been subjected to chaos and confusion.
Hence, the newly inserted provisions of chapter IVA of the 1937 Rules being unknown to and in derogation of the customs and practices in the administration of justice, and also in contradiction to the jurisdiction of regular judicial courts in the State, the provisions of the said chapter IVA is required simply to be repealed and deleted from the 1937 Rules.
Talitsungba Ao, President and V Hukavi Zhimomi, Secretary, Nagaland Bar Association
