Has Article 371 (A) of Constitution Become Redundant

by

- -    P. PIUS. LOTHA    - -

Former Additional Advocate General, Govt. of Nagaland

Nagaland attained the 16^th state in the Union of India by Signing the 16 points agreement in the year 1960, with a special provision inserted in the constitution of India as article 371(A) with a Special provision with respect to the state of Nagaland.

1)      Notwithstanding anything in this Constitution, –

(a)   No Act of Parliament in respect of –

Ø  Religious or Social Practices of the Nagas,

Ø  Naga Customary Laws and Procedures,

Ø  Administration of Civil and Criminal Justice involving decisions according to Naga Customary Laws,

Ø  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 with majority votes.

Although a special provision was given in the Constitution of India, even after lapses of 70 years, there has not been any codified Naga Customary Laws in the State, except theoretical practices. Due to the reason, it has now started deviating the original practices and to some extend diluted in the absence of written codes. With the passing of years, the Naga Customary Laws and Practices are slowly eroding and vanishing and overwritten by courts of the day. With the passing of years the Hon’ble Courts have started interpreting Article 371A and the procedures for application in the State of Nagaland, which is highlighted for public awareness. The following decisions are doing away with the special provision as regards to sub clause (1) (a) (ii) and (iii) which may be looked into as observed Gauhati High Court in the following cases.

Shri. Nihoto Sema versus Smti. Kanili Kini Limi, 1985 Legal Eagle (GAU) 29 : (1986) 1 Gauhati Law Reports 66 (Before Manisana, J.) Civil revision No. 12 (R) of 1985 decided on 20.9.1985

Indian Divorce Act, 1969 - whether in force in Nagaland - Held in the view of the Adaption of Laws Order. 1950 (as amended by Act 3 of 1951) the Act is applicable to Nagaland.

The court discussed as to whether Indian divorce is in force in Nagaland at para four of the judgment which may be read as follows.

Quote Para 4 :

A short question which arises for consideration in whether the Indian Divorce Act is in force in the State of Nagaland. Mr. D.N Choudhury, learned counsel for the petitioner has submitted that the Naga Hills District was one of the districts of the then provision of Assam. The Naga Hills District was also a part of the Scheduled Districts under the Scheduled Districts Act, 1874. Under section-3 of the Scheduled Districts Act, the local government by notification in the official Gazette would declare what enactments were actually in force in any of the Scheduled Districts or in any part of such districts. But there was no such notification. Closed

Quote Para 6 :

This Act extends to the whole of Indian except the State of Jammu Kashmir.

In this view of matter, the Act has been in force in the Naga Hills district. The State of Nagaland was formed with effect from 1.12.1963 under the State of Nagaland Act, 1962. Under sub- section (1) of section 26 of the State of Nagaland Act all the laws in force, immediately before 1.12.1963, in “the Naga Hills District-Tuensang Area” shall continue to be in force in the State of Nagaland until altered, repealed or amended by the competent Legislature or other competent authority. “The Naga Hills-Tuensang Area” is defined in section 2 (a). Under Sub-Section (2) of section 26 for the purpose of facilitating the application in relation to the state of Nagaland of any law before 1.12.63, the appropriate government may, within two years from 1.12.1963 by order makes adaptations and modifications of the law, whether by way of repeal or amendment as may be necessary or expedient. The parties have not produced any material in order to show whether was any adaption under sub section (2) of the section 26 of the State of Nagaland Act. However, omission to adapt under section (2) in no way affects the question, whether the Act continues in force as the law in the State of Nagaland in “Naga Hills Tuensang Area” even after the commencement or the State of Nagaland Act.

The Supreme Court, in M.G. Desai - vs- State of Bombay, AIR 1960 SC 1312 : 1959 Legal Eagle (SC) 208, held :

There is no substance in the contention that in the absence of adaptations which the President of India is competent to make under Cl. 2 of Art. 372, the Bhor State Ordinance lapsed. By Cl. 2 of Art. 372, the President is authorised to adapt existing laws; but the application of the existing laws is not conditioned by the making of adaptations or modifications in that law by the President.

Mr. Choudhury has further submitted that divorce involves customary law of the Nagas and therefore, unless the Legislative Assembly of Nagaland by a resolution so decides under Art, 371A, the Indian Divorce Act shall not apply to the State of Nagaland. Sub Clause (a) of the Clause (1) of Art. 371A provides that notwithstanding anything in the Constitution, no Act of parliament in respect of (1) religious or social practice of the Naga, (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 the land and its resources, shall apply to the state of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.

As regards the custody of the child, the first and the paramount consideration is the welfare, happiness and interest of the child. The court shall consider and weight all the relevant circumstances. The learned Additional Deputy Commissioner, in his order dated 17.4.1985, has observed that it is also seen that the child had all along been with the mother at Dimapur and the fact that the child is still a mere child of 3½ years, she requires more of motherly care and protection. The learned Additional Deputy Commissioner, in his order dated 8.5.1985, has further observed that the custody of the child was of urgent nature therefore he passed the order ex-parte directing the petitioner to restore the custody of the child to the respondent. In this view of the matter, the Additional Deputy commissioner found only a prima facie case and circumstance for making the ad interim ex-parte order. It is made clear that in making this observation, I must not be presumed to have expressed any opinion on the merits of the controversy raised.

For the foregoing reasons, while maintaining the impugned Orders it is directed that the Additional Deputy Commissioner (J). Dimapur, shall hear the petitioner on the points whether the impugned orders relating to the custody of the child will be made absolute or not. Accordingly, the petition is dismissed with the above observation and direction. The parties shall appear before the learned Additional Deputy Commissioner (J). Dimapur, on 10.10.1985 for the purpose of receiving directions of that court as to further proceeding in the suit. If the party do not appear on 10.10.1985 the learner Additional Deputy Commissioner (J). Dimapur, shall proceed in accordance with law. The stay order stands vacated”.

Taking into the account of a afore cited Gauhati High Court, Judgement, the Naga customary law as to marriage and divorce which the Nagas follow by ancestral has been diluted since state assembly has not pass any Act amending those Acts which were earlier imposed on Naga Hills Tuensang District as observed in the present judgement. It is therefore; imperative to look into our customary right whether it is protected as provided by the constitution of India since the state legislature has not altered/repealed the Act which was as amended by Act 3 of 1951) the Act is applicable to Nagaland.

Gauhati High Court 2013 (4) GLT 1109 before division bench, in Register General, Gauhati High Court vs. Unoin of India & Ors. In WP(C) No. 5873 of 2006 Decided on 16.09.2013.

The High Court upon hearing the petition, passed the following orders where CPC and Cr.PC shall be applicable in the state of Nagaland. The observation of the Hon’ble Court may be seen at Para 32 to 34. Quote; It is, thus, clear that if legislative intent is to bar applicability of CPC and Cr.PC to customary courts or courts manned by executive officers, the said Bar cannot be held to be applicable to regular courts. This interpretation will be harmonious with the functioning of regular courts under the Civil Courts Act and also customary or executive courts under the Administration of Justice Rules. Accordingly, we hold that the Bengal, Agra and Assam Civil Courts Act, 1887 is applicable to the districts of Dima Hasao and Karbi Anglong in the state of Assam and the state of Arunachal Pradesh and Nagaland. The Administration of Justice Rules applicable in the state of Nagaland and the North East Frontier (Administration and Justice) Regulations, 1945 applicable in the state of Arunachal Pradesh will give away to the provisions of the Civil Courts Act to the extent of inconsistency in relation to functioning of Courts manned by members cadre of judicial service. We further hold that CPC and Cr.PC are applicable to the regularly constituted civil and criminal courts without in any manner affecting operation of Article 371A or the functioning of village, customary or any other courts other than the regularly constituted civil and criminal court in the state of Nagaland manned by the members of judicial service.

We make it clear that this order will not affect validity of any orders already passed without following the provisions of CPC or Cr.PC on an understanding that CPC and CrPC were not applicable to the state of Nagaland. We also make it clear that the state of Nagaland will be at liberty to approach this court for any clarification, before the next date. This also will not affect the power of the said state under provision to section 1 (2) of the Cr.PC and 1(3) of CPC to issue an appropriate clarificatory notification on enacting its own Civil Courts Acts”.It is therefore imperative for the state government to bring about necessary enactment/repeal in the laws as pointed out by the Gauhati High court in its orders to maintain the powers of Customary Courts in Nagaland as empowered under Article 371A of the Constitution of India.

As per the interpretation of the Hon’ble Gauhati High Court, The Indian Divorce Act, 1969 Act is applicable to Nagaland. Hence the legislature needs to adopt by resolution on the floor of the assembly the rights given under article 371A which till today has not been adapted and for which our customary rights are over written by the courts of the land. The Nagas have rich culture, tradition and customary practices and usages varied forms of customs by every tribe, sub tribes and ranges which are very similar in nature. Therefore, it is imperative to codify the customs, traditions, practices and usages traditionally practiced by the forefathers to follow them before they fade away by adapting a resolution in the State Assembly as pointed out by the Hon’ble Court. We may ponder as to whether the jurisdiction of the Naga customary courts should be limited to village courts and DB’s court. All the different tribes Naga tribes has been strongly advocating with much resonance but is only in theory and not in letters till date.

It may further be pointed out that in the recently decided case in CRL.A(J)/3/222 Mhonbemo vs The State of Nagaland by the Gauhati High Court Kohima Bench on 30.05.2023, the Hon’ble court had assailed the village court order of 10 years excommunication from the village as a punishment for rape according to the Naga custom, which otherwise cannot be construed as a double jeopardy for conviction by the court while refereeing to judgement in Registrar General of Gauhati High Court vs Union of India in 2013 SCC .Gau 558. In view of the rulings of the successive court, the government should ponder on the observation given by the courts to altered, repealed or amended by the competent Legislature or other competent authority if the State government wants the application of article 371A in letter and spirit in Nagaland.

In the recently decided Case No.CRL.A(J)/3/2022 on dated 30.05.2023 by the Gauhaty High Court Kohima Bench, the village council order for deporting an accused for ten years from the village in a alleged rape case according to the Naga customary law has not been validated.

The Nagas are encountered once again with another major issue in implementation of Art.243T which the public and the government have withheld till date which is now before the highest court of the land. In this regard the Nagaland legislative Assembly has to decide taking into perspective the rights as per the provision given in Article 371A read with Article 13 of the constitution of India to legitimise the customary rights of the Nagas before it dies a natural death.

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