Respected Sir,
The Ex-Parliamentarians Association of Nagaland (Ex-PAN) would like to take the opportunity to submit this representation to the August 22nd Law Commission of India.
The Ex-PAN is an association of all former State Legislators and Members of both upper and lower houses of the Parliament representing the state of Nagaland. The Executive Committee of the Ex-PAN met on the 20th of June 2023 and deliberated on the Uniform Civil Code (UCC). The meeting expressed grave concern on the proposed UCC and viewed that there would be far reaching consequences on the Naga society, should the UCC become a law and have therefore, resolved to submit this representation, strongly opposing the adoption of the UCC in the country.
Since time immemorial, the people in every Naga village have been governed by laws based on their unique Traditional Customary laws. This customary legal system of the Nagas have been appreciated and recognized, so much so, that it has been enshrined in the Constitution of India under Article 371 (A) which inter alia reads:
371A-Special provision with respect to the State of Nagaland Notwithstanding anything in this Constitution,
(a) no Act of Parliament 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, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.
It is worthwhile to bring to the notice of this Commission, a brief background to the condition/ situation leading to convincing the lawmakers of India to create and incorporate the above quoted provisions in the Constitution of India.
The Nagas, a freedom loving tribal people, lived in villages where each village existed as an independent republic. They became a part of India by virtue of the British colonial Empire. The British appreciated the customary law practiced by the Nagas and finding them practical and just, allowed its continuation. When India gained Independence, a large area occupied by the Nagas living under the then Assam administration, was enjoined to India despite our protest and including ‘declaration of Independence’. A violent insurgency movement ensued that was accompanied by immeasurable pain and bloodshed and where ultimately the Armed Forces was inducted to deal with the situation. This was done with the passing of the Armed Forces Special Powers Act (AFSPA) 1958; a draconian law in any democracy, which is applicable to the State of Nagaland even today.
The tragedy was contained, to some extent, through the 16 Point Agreement that created the State of Nagaland. In this Agreement, the lawmakers of India, particularly in acknowledgement of the extent of human tragedy that had been inflicted upon the Nagas, made many provisions which are held in solemn regard by the people of Nagaland. Among these, in appreciation of the unique Customary Law that was practiced by the Nagas to maintain justice and the law and order in society, a special provision for continuation of the ‘Naga Customary Law and Procedure’ was incorporated in the form of Article 371A in part XXI of the Constitution of India. The Nagas believe and trust upon this provision of the Constitution of India and have abided by the Agreement that created the State of Nagaland. It would be sheer disregard, disrespect and contempt of the solemn agreement that was signed between the Nagas and the Government of India, if we implement a UCC that would over-rule and destabilize the existing status quo.
The Naga Customary law focuses on and arbitrates on issues that the UCC would principally focus upon, individual and community (social) rights and duties, matters of land and property, and covers, marriage and divorce, its related practices and disputes encompassing adoption, inheritance etc. All these issues have been amply taken care of within the ambit of customary laws that have been practiced over the centuries and based on the wisdom born through the ages. In its implementation there have been very little dissenting voices.
The implementation of the customary laws are also very simple and above all, they do not entail any cost as there are no judges, lawyers, pleaders, clerks etc. Every Naga Village has an established ‘Council of Village elders’ to deliberate and adjudicate the cases. In some villages they are referred to and manned by a village Gaon Bora Court. Gaon Bura, literally meaning village elder (a terminology in vogue since the British Raj). At the higher administrative level such as the EAC, SDO circles and the district level, there is a Court of appeal comprising the Dobashi (interpreter/two language) Court that deals with appeals under the customary laws. This Court is empowered under the provisions of the Rules for Administration of Justice and Police in Nagaland, 1933 and the investment of powers and decisions taken thereof have been upheld by the Hon’ble High Court as well as the Supreme Court of India. Therefore, the source of powers of the Dobashi Court emanate not only from the Customary Law but also from Statutory Law. The State Government is further contemplating to establish a State level Tribunal for Customary Laws/procedure and usages.
Mention must be made that in Naga society there are no issues such as opposition to remarriages, triple talaq, child marriage etc. In fact the Naga women are comparatively better placed when compared to women in the other parts of the country. No doubt women are excluded from inheritance of clan or community owned lands which is a typical tribal worldview that prevents land and property going out of the Clan or village ownership. However, as the nomenclature of ‘Custom and Tradition’ suggest they are changing with time and the processes of modernity. The Naga society is much more liberal to the idea of sharing family owned land and properties.
In short, when a society- the Nagas – put such a strong sense of affiliation and belonging to its tradition and custom and when the entire context of its existence revolve around such a system of law, it will/may be precarious to alienate the people from such a position and impose an alien law that will uproot its mooring and create a ‘topsy turvy’ world that would have a far reaching adverse consequences affecting even the tranquility of India.
The Ex-PAN is, thus, of the strong opinion that, application of UCC to the state of Nagaland will contravene/negate the provisions of Article 371(A) and Naga ways of life. Also, the 21st Law Commission of India set for the purpose examining UCC stated on 31st August 2018 through its185-page consultation paper/report that a uniform civil code is “neither necessary nor desirable at this stage” adding that secularism cannot contradict plurality prevalent in the country. How have such situational changes taken place in the last five years on the ground to change the learned opinion of the previous Commissions? We may add that India thrives on “Unity In Diversity” – we are different but we are united with the differences in our tradition and culture. The Country must protect our differences. And we Indians of different cultures must learn to respect each other.
Therefore, we sincerely hope that the present august Law Commission will uphold the ruling given by its predecessor and maintain the status quo on the issue at hand.
Joshua Sumi, President
Tarie Zeliang, General Secretary