NBA raises red flag on attempts to codify social customs, practices

DIMAPUR, JAN 20 (NPN) | Publish Date: 1/20/2021 12:17:48 PM IST

Nagaland Bar Association (NBA), has cautioned the attempt to codify old social customs and practices of various tribes and seriously viewed the impending negative effect to the age-old customary practises of Nagas. 

NBA president Talitsungba Ao and secretary V.Hukavi Zhimomi, in a statement, said the bar at its executive committee meeting on January 13,2021 came to this conclusion after discussing matters related with the ongoing steps taken by the state government for codification of Naga social customs and practices.

The NBA executive pointed out that in order for social customs and practices to have the force of law, ought to fulfil the three necessary requirements: it must have been in practice without any interruption since the time immemorial; it must have been regarded as having the force of law and also it must be unwritten. 

According to NBA, social customs and practices once reduced into writing under the authority of the government, will become a “code” and lose the essential legal ingredients of customary laws. 

It emphasised that social customs and practices codified by the government or under the authority of the government which becomes code and no longer customs and practices in the eye of law. 

 Further, NBA pointed out that apart from protection of religious and social practices of the Nagas, and the Naga customary laws and procedures under Article 371A (a) (i) (ii) of the Constitution of India 1950, the protection and preservation of the social customs and practices of the ethnic minorities all over the world were universally acclaimed inherent rights. 

NBA said these practises were also recognised and protected by declarations of the United Nations, adding that no authority can lawfully impose codification of these customs and practices.

However, NBA said the government of Nagaland apparently “may not have taken proper legal advice or may have been wrongly briefed on the subject matters.”

According to NBA, even the Centre could not so far codify the social customs and practices uniformly for the entire populace of the country because of the divergence among communities - religiously, ethnically or for the other reasons.

It said that the leaders of tribal unions/associations in Nagaland could be lacking in knowledge about the likely negative legal consequences that could arise if such codification was allowed to be made by the government or under its authority. 

 NBA said the recent requisition by the state government in directing all the tribal unions/associations in the State to furnish in writing, the questionnaire it circulated relating to various social customs and practices, appeared to be “misdirected in the eye of law” and liable to be abandoned to maintain the legal sanctity of the social customs and practices.

Meanwhile, NBA has stated that despite of the Nagaland state having the distinction of the second oldest among the North-Eastern states, it was lacking far behind other states in the establishment of the State Judiciary. 

Apart from Article 214 of the Constitution of India 1950, NBA said the Union Cabinet had also passed resolutions providing separate High Courts for each state.

 NBA said Nagaland was still controlled by the Gauhati High Court that functions under “different social atmosphere as distinguished from our tribal social conditions.”

It said Nagaland “has ample provisions for independent higher judiciary in the state as against the control from the authority located in another state.” NBA appealed to the state authorities “to exercise the Constitutional powers so the people in the state would enjoy the full privileges of being a full fledged state”.


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