Vecito Dozo
It is true that the administration of justice by judicial process meant an alien to our culture and practice. In most of the primitive societies we found when a wrong was done against an individual he resort to vengeance ie; head for head, eye for an eye. In doing so he get helps from relatives and kinsmen in the act. The right, wrong and punishment has also/ been decided by the physical strength of the contending parties. It does meant the party who proved to be stronger was considered to be on the right. For instance to what Naga practice is concern (customary law), if a person against whom there was any allegation and to prove his or her innocence, he or she is asked to swear upon the name of his or her family and upon its future generation to prove his or her innocent. And in any proven cases of heinous crime he or she would be ostracized as punishment. The very inherent practice is prevailing in the Naga society even today. Though very late, gradually the Naga society/public has demonstrated its resentment against the wrong doing against an individual or the Society in different forms of exhibitions.
The administration of justice is one of the essential functions of the State. The law and order is maintained through the administration of justice to make the citizens to realize the existence and importance of the State. For the protection of the citizen’s rights and for its own protection, it is necessary for the State to maintained law and order. The State defines the right and duties of its citizens. The State protects the rights and enforces the duties. The State appoints persons to adjudicate the right or wrong and to secure their rights. In due process, if any violation of rights of an individual is made by another person the latter is to redress it or punished. In this process the court come into being. In modern time judicial order is a very important component of the Government and it is called judiciary.
In this parlance as a common citizen, I would like to expound my analytical views on the advantages of Separation of Judiciary in the State.
Difference between Legal and Moral:
Today we need to understand the difference between what is legal and what is moral. When we talk about moral it speaks volumes of one’s credibility, integrity, honesty, courage, simplicity, obedience, fear of Divine power and super natural powers. In simplest sense of the term legal, matters based on law and it is about one’s legal right and legal duty towards the State. The citizen owes to perform duty towards the State and in reciprocal the State is liable to protect the Citizen.
When we minutely study the traditional practices of the Nagas it is partly of ritualistic and of moral science that governs the people from the time immemorial and we called it today the Customary Law. In fact, the sources of law and legal system derive from the Divine Laws and Customary Laws. In other word Divine Law and Customary Law begets the modern developed Legal Systems which governs the civilized society. Today what we can sense from the words of the exponents of customary law that the Customary Law is a mixture of Divine Law and Moral Science. In this given situation what I am trying to say is that I am not against the Divine Laws or good moral but we must not be confused between what it should the Divine Laws, what it should moral science and what it should Legal right and duty. These three elements will co-exist so long human society exists. Hence, it is very important to keep in mind that the three elements- are separate entity, independent from one another and the intricacy of its application must be realized by the society.
Conflict of Laws:
We can not rule out the flaw of the Laws/Acts which has set rules and regulations to be governed by the law. In Naga Society we often find conflict of Laws. For example The Divine Law will say forgive and forget the wrong doing against the other on the principle Christ teaching and his sacrificial Blood. On the other hand the Customary Law in the rare of the rarest case either ostracized or expelled the hardcore criminals as an exemplary punishment from the clanship, village or community. Today, the Society must seriously expedite the efficacy and effectiveness of forgiven and forgiveness to a habitual hardcore criminal in the name of the Divine. The society need to realize the old saying” It is easier to make fire in the old Hearth” would be a befitting portrayal of those who have pardoned in the name of the Divine.
Customary Law Courts:
In the absence of separate and independent judiciary system in the state we find the society being so fragile and volatile from the hands of usurpers etc. The customary court prevailing at the grass-root level, the backbone of the society is so primitive and rudimentary to expect due deliverance of social, civil or criminal justice to its citizen. The exercise of customary wisdoms mostly prone to personnel whims and biasness undermining the merit of the case in absence documentary books, guides for references etc. The system needs improvement and up-gradation to a certain degree of standard with the active support from both the government as well as the citizen.
The Logical ends of ostracized and its time of relevancy:
The primitive social set up and chieftainship has found irrelevancy in the present society. In the days of yore, when head hunting was prevailing in the society and surrounded by hostile environments such as between man and man, the man. And the beast, banishment of one from the village or community would have a bearing in the mind of the convict as well as the citizen. The degree of the punishment is equal to death sentence of present legal term. But today, even if a hard core criminal have expelled from the place of his/her resident as per customary law, definitely he/she would have find a more comfortable place to live on. The action so taken has no longer a bearing or impact in the society. And this is happening in the society and now what is the use of sticking one’s old gun.
Limitations of Customary Laws:
In the free and democratic set up society we have plenty of opportunity to excel in the field of learning such as art, music, literature, physical, political, moral, social science, legal science and why not improvement of Customary Laws. By codification of the fragmentary customary practices amongst the Nagas by refining would be a stepping stone for improvement of the so called Customary Law. Even if we pursue for such codification, could we completed the process within a time framed period is quite doubtful without Legal authority and legal sanction. The Customary Law may play an effective role within its limited ambit. Therefore, the exponent must realize the short comings so also the limitation of Customary Law in the present pluralistic and complex composite society. For instance, Will the customary law court deal crime related to power theft, cable theft or cyber crime in the same yardstick of those accusing stealing of spade, dao, hoe, crowbar and cattle as a theft? Or can we imagine that big fishes will be catch in the net of Customary Law Court?
Mushrooming Courts in the State:
Beside the State controlled Courts, branding under the banner of Customary Law the State in recent fears have witnessing mushrooming growth of many controversial Courts being established in the society today. The unprecedented establishment of such unrecognized court would be a paradise for vice and corrupt people and the innocent citizen were left perplex to which court they will keep allegiance. For the just and innocent citizen become the victim between such forces. This trend of dubious petty courts delivers controversial judgments to the disbelief of the just and innocent citizen which tends people avoiding to approach proper Court to taste the inertia of Legal Justice. As a result of which the citizen’ undermine the strength and utility of Judicial System in the Society. Therefore, it is rightly said, “too many cooks spoil the broth”
Today we talk about corrupt practices at most level in the society, corrupt governance in the Governmental set up irrespective of Politicians or Government officials, social slackness and social maladies. To check mate these malaises, the democratic Government has set up three tier organs such as Legislature, Executives and the Judiciary. In the present given situation we felt the presence of the legislature, the executives but where is the Judiciary? In the absence of independent Judiciary system in the State, we can not expect a vibrant society to curb corruption, social diseases and social illness.
In conclusion, one is so obsess of eating the salt of others and live on the currency of the country still then one remain silent on its propriety and when it comes to Judicial matter if we called the civilized law as alien to our culture. Such a statement is very unfortunate and it is a farce to a school of positivism thinkers. Because, by now all can not be accommodated in the pond and some have to plunge in the sea to quench one’s thirst of knowledge and understanding. Could one believe that a prudent man advises the youngsters to live and be ruled by primitive practices in the name of upholding customary law? The world is on fast changing trend, the present and future generation would be looking forward to keep pace with social changes of its surroundings. With changing pace of time a new form of crime and social diseases would be borne everyday. To combat the ugliness of social vice and diseases we have a weapon called it Judiciary.
Therefore, the need of the hour is freed the Judiciary from the shackles of dominance, Separate the Judiciary from the clutches of Executives, give free hand to Judiciary as per the law of the land because the citizen believes in the Judicial system.
