WRITTEN BY MADHABENDU CHAKRABORTY, a 1st year law student, BA.LLB(H)
- Introduction:
The tribal and village courts in Northeast India play a crucial role in dispensing justice and maintaining order within communities. The diversity of this region is a big challenge to such courts. These courts operate on the foundation of customary laws, reflecting the rich cultural diversity of the region. This article delves into the workings of these unique judicial systems, highlighting their significance and variations.
- Customary Laws and Cultural Context:
The Northeastern region of India is more diverse than the whole continent of Europe combined[1]. This region is home to a myriad of tribes, each with its own set of customs and traditions. Tribal and village courts derive their authority from these customary laws, which are deeply rooted in the cultural fabric of the communities. Elders and respected individuals often form the core of these courts, utilizing their wisdom and experience to address disputes. The recognition of tribal and village courts varies across states in India. In some regions, state laws acknowledge and support the role of tribal and village courts, providing a legal framework for their functioning. These courts work under the provisions granted by the Fifth Schedule of the Indian Constitution. Specially, the Article 244(1) allows the President to direct that the provisions of the Fifth Schedule shall apply to the administration of Scheduled Areas and Scheduled Tribes in a state. The Fifth Schedule, in turn, mentions the establishment of District Councils and Regional Councils with judicial powers for the trial of suits and offenses in accordance with customary law. Village courts in India are primarily established under the framework of the Gram Nyayalayas Act, 2008. The Gram Nyayalayas or village courts aim to provide easy access to justice in rural areas. Often, the rural people are deprived of the judicial lifeline. This act pledges to ensure that no one belonging from the rural area is deprived of the ‘direito’. But a point is to be noted that the tribal courts and village courts also existed before the independence.
- Dispute Resolution Process:
Unlike formal legal systems, tribal/village courts prioritize community consensus. Dispute resolution typically involves a collaborative effort, with the aim of restoring harmony within the community. Mediation and negotiation play pivotal roles, and decisions are often reached through dialogue rather than rigid legal procedures. This ensures quick justice to the victims. Village/Tribal courts are informal in nature, focusing on resolving conflicts through mediation, conciliation, or arbitration. The goal is to restore harmony rather than strictly adhering to formal legal procedures.
Before independence, India was divided into numerous princely states and regions, each with its own set of communities, including various tribal groups. The administration of justice within these tribal communities was largely decentralized and governed by traditional, customary practices. The ways, it was done is mentioned below-
1. Tribal Councils and Assemblies:
– Many tribal communities had councils or assemblies where decisions were made collectively. These councils consisted of respected elders and leaders who were knowledgeable about tribal customs.
– Disputes brought before these councils were addressed through discussions and consensus-building. The elders played a significant role in mediating conflicts and ensuring fairness.
2. British Recognition:
– The British colonial administration recognized the existence of these customary laws. In some cases, they documented and codified them to some extent, but the level of recognition varied.
– The British often utilized the assistance of local leaders and intermediaries to administer justice, and traditional tribal authorities were sometimes incorporated into the colonial administrative structure.
3. Post-Independence Developments:
– After gaining independence in 1947, efforts were made to integrate tribal communities into the mainstream legal framework while respecting their autonomy.
– The Constitution of India, under the Fifth Schedule, provides special provisions for the protection of tribal areas and their customary practices.
– The Panchayats (Extension to Scheduled Areas) Act, 1996, further extends local self-governance to tribal areas, allowing for the preservation of their traditional decision-making processes.
After Independence, Article 244(2) of the Indian Constitution, provides the legal framework for ensuring justice in autonomous districts and regions.
Under the sub clause(4) of the clause(4) of the same article, it is mentioned that the High Courts shall have and exercise their jurisdiction over the suits. Under the sub clause(2) it is written that, “Notwithstanding anything in this Constitution, the Regional Council for an autonomous region or any court constituted in that behalf by the Regional Council or, if in respect of any area within an autonomous district there is no Regional Council, the District Council for such district, or any court constituted in that behalf, by the District Council, shall exercise the powers of a court of appeal in respect of all suits and cases triable by a village council or court constituted under sub-paragraph (1) of this paragraph within such region or area, as the case may be, other than those to which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule apply, and no other court except the High Court and the Supreme Court shall have jurisdiction over such suits or cases.”
The sub clause(5) clearly mentions the conferment of powers under the Code of Civil Procedure(1908) and the Code of Criminal Procedure(1898) on the Regional and District councils and on certain courts and officers for the trial of certain suits, cases and offence.
The Sixth Schedule of the Indian Constitution provides special provisions for the administration of tribal areas in the states of Assam, Meghalaya, Tripura, and Mizoram. It grants autonomy to certain tribal areas by establishing autonomous district councils. Here are the key features:
1. Assam, Article 244(2),
– The Bodoland Territorial Region (BTR) is created with the Bodoland Territorial Council (BTC).
– The BTC has legislative, executive, and judicial powers within its territorial jurisdiction.
2. Meghalaya, Article 244(2),
– The Garo Hills Autonomous District Council and the Khasi Hills Autonomous District Council are established.
– These District Councils have legislative, executive, and judicial powers.
3. Tripura, Article 244(2),
– The Tripura Tribal Areas Autonomous District Council (TTAADC) is created.
– TTAADC has legislative and executive powers, and it can administer justice in accordance with customary laws.
4. Mizoram, Article 244(2A),
– The Mizo District Councils are formed with legislative, executive, and judicial powers.
– These councils have the authority to administer justice according to customary laws.
- Role of Elders and Community Leaders:
Elders and community leaders are central figures in the functioning of these courts. Their knowledge of traditional norms and values guides the decision-making process. These respected individuals not only contribute to dispute resolution but also play a role in upholding social order and promoting cultural preservation[1]. Their image itself is quite equivalent to the judges of the apex courts to the local people. In such informal setup, their decisions are considered supreme and is obeyed by both the parties involving in the legal dispute. Mediation, negotiation, conciliation, etc are not possible without their interference. Their involvement ensures the proper and smooth interpretation of the customary law of the respective village or tribe.
- Variations Across Tribes and Villages:
As the north east is a diverse region, therefore diverse laws are also an innate part of this region. Different villages and tribes have their own set of rules and regulations which are identical to each other to a quite larger extent. While there are commonalities in the principles underlying tribal/village courts, variations exist based on the specific customs of each tribe or village. Different communities may have distinct rituals, procedures, and criteria for selecting individuals to serve in these informal judicial capacities.
Tribal and village courts derive their authority from the customary laws and traditions of the specific tribal/village community they serve. These laws are often oral traditions passed down through generations and reflect the unique cultural identity of the tribe. These variations often lead to a clash between the two communities/tribes who are involved in disputes.
- Challenges and Adaptations: Despite their integral role, tribal/village courts face challenges in the modern context. Changes in societal structures, external influences, and the need for legal harmonization pose ongoing challenges. Some communities are adapting these traditional systems to coexist with formal legal frameworks, seeking a balance between tradition and modernity. Often cases are seen where the modern ideologist clashes with the orthodox elders, in such cases the “voice of the mature one” is heard, which is quite biased in most of the cases[1]. The influence of one individual or group over the community leaders often puts a question mark on the neutrality of this type of courts. These courts usually have jurisdiction over matters within the tribal/village community. While they address a wide range of issues, serious or complex cases may be referred to higher legal authorities if necessary. They don’t have a wider scope of jurisdiction.
- Conclusion: Tribal and village courts in Northeast India stand as unique examples of community-centric justice systems. These are the systems that Gandhiji once talked about. Grounded in tradition, they navigate the complexities of modern life while preserving cultural identities. Understanding the dynamics of these courts provides insights into the diverse and resilient societies of the Northeast
