Cutting the clutter
The Pongchinsonla case points towards an urgency to educate masses on Article 371A and states’ customary laws; writes Sourjya Das
The first advice my local Naga friend gave me when I travelled to a village in Phek district in Nagaland to deliver a lecture on access to justice, was: "Please start your speech by talking a little about Article 371A." I realized that Article 371A is the only bridge between a remote village in Nagaland and the laws of India.
Article 371A is important for the preservation of Naga culture but the need to educate the masses with regards to its provisions and prohibitions has hardly been realized by either the Centre or the state. Lack of this awareness and its consequences are best portrayed in the recent case of "State of Nagaland v. Pongchinsonla and others" in the Tuensang District Court.
The investigation in the case had revealed that the victim woman was walking half-naked on the road as a part of a punishment whereby her hair had been chopped off and she was forcibly made to undress her clothing. This public shaming was imposed against having an extra-marital affair. Tuensang District Court sentenced eight women to one-year imprisonment along with fine under sections 342, 352, 324, 354, 143 and 149 of the Indian Penal Code in the case.
What was even more concerning was the kind of defence taken by the counsel of accused persons before the court. It was argued that the offence under Section 354 of the IPC wouldn't apply since the victim was aware that extra-marital relationship brings bad name in the society as per the "customary laws" and that the acts of the accused were based on the customary practices.
The court, however, observed that the villagers took the law into their own hands and delivered justice in "barbaric fashion" through their kangaroo court. It strongly condemned the act saying: "Despite the advent of the modern-day dispute redressal system in our society, the village folk choose to punish the victim through their kangaroo court. It is such an inconceivable fact to even think that the women folk would go to the extent of chopping off a lady's hair, stripping her and parading her naked on the roadside."
It is a fact that such punishments are not a part of the Naga customary law. The main punishments in Naga customary law include boycott, excommunication and banishment or exile. Kahuto Chishi Sumi, the village council chief of Hevishe village in the Dimapur district stated that such a punishment is illogical with respect to the traditional Naga lifestyle.
One of the judicial members of the District Customary Court or Dobashi Court at Kohima informed that there is no conflict between the laws of India and customary laws. On the other hand, Kahuto Chishi Sumi states that the presence of Customary Courts or Dobashi Courts have in fact had their interferences in Indian penal law whereas the same might be completely impermissible for Indian criminal law. Quite surprisingly, the state often distances itself away once the matter is under the consideration of the Dobashi Court.
The major reason behind the lack of understanding between the legal infrastructure of the states and the villages is the absence of codification of customary laws. The wisdom behind Article 371A of the constitution can only be realized once there is a codification of customary laws. The state has enough infrastructure to appoint teams comprising jurists and law students to towns and villages in Nagaland who could, in consultation and association with local Dobashi members, put these customary laws into writing. Such documentation can be protected by the Department of Social Welfare and the Ministry of Tribal Affairs of the concerned state. If there is a locally renowned decision of a Dobashi Court, the same may also be written down for reference to other Dobashi Courts of other tribes for the development of their customary law.
The non-codification of customary laws makes it difficult for villagers to understand what is permissible and what is not. The Tuensang District Court in the Pongchinsonla case has clearly noted: "The accused persons in their guilty statements said that in the year 2018, the women folk of the village passed a resolution wherein they decided to punish adulterous women as per customary practices. However, the misconceived notion of empowering oneself with the so called "village resolutions" to do barbaric acts like this one should be avoided at all cost."
It is a known fact that in 2018, the Supreme Court had decriminalized adultery vide its judgment in Joseph Shine v. Union of India, and the same was well reported and circulated throughout the country. It can also be assumed that a judicial member of a customary court or a kangaroo court would be reasonably aware of Central penal laws, at least as far as landmark and paradigm changes are concerned. In such a case, how could a kangaroo court allow the penalty arising out of a civil dispute to be so shocking and grave that the orchestrators or witnesses of such a penalty would subsequently be charged with criminal offences under the Indian Penal Code?
There is no doubt that there is a lack of communication and acceptance of the limitations of powers of kangaroo courts. The benefits under Article 371A of the Constitution do not extend to a kangaroo court whereby it could allow, order or conduct a so-called "customary punishment", especially when that very act of punishing is punishable under the Indian Penal Code.
The Pongchinsonla case (supra) is an eye-opener to the state as well as the Centre that systematic codification of customary laws is urgently necessary for states where customary laws play such a vital role in public life. It is also equally important to lawfully intervene in other instances in the form of educating local people regarding such limitations in powers of customary courts so that no space is left for potential offenders to violate someone's fundamental right justifying the same as "customary" or "village resolutions".
Views expressed are personal