Written by – Suchismita Choudhury,finalyear, BA.LLB(honours)
Abstract: This academic paper explores the customary laws of Northeast India, focusing on their significance, sources, and implications for tribal communities in the region. Northeast India is known for its rich cultural diversity and distinctive socio-legal systems, with over 300 ethnic tribes residing in the area. These tribes have their own customary laws that govern various aspects of their lives, including land ownership, inheritance, marriage, and dispute resolution. The customary laws of Northeast India are deeply rooted in the collective traditions, beliefs, and customs of each tribe, reflecting their indigenous knowledge and way of life. This paper examines the role of customary laws in shaping the social, economic, and political fabric of the region, as well as their impact on preserving the unique cultural heritage and identity of tribal communities.
Introduction:
Northeast India is renowned for its rich cultural diversity and unique socio-legal systems, with customary laws playing a pivotal role in shaping the region’s social, economic, and political fabric. Developed and practiced by the tribal communities, these customary laws reflect their deep-rooted traditions and indigenous knowledge. Unlike public property systems, customary laws predominantly emphasize limited common property ownership. With strong legitimacy, these laws serve as vital land protection mechanisms for the benefit of local tribal citizens.
The transmission of customary laws in Northeast India has historically been oral, passed down through generations by community elders. Often intertwined with religious beliefs, the majority of households in Myanmar also adhere to the “Myanmar Customary Law.” The Northeast region of India is home to over 130 major tribes, each with its own distinct customary laws governing various aspects of life, including land ownership, inheritance, marriage, and dispute resolution. These laws are deeply rooted in the collective traditions, beliefs, and customs of each tribe, closely tied to the concepts of kinship and lineage.
Customary laws in Northeast India are not limited to property rights and resource management; they extend to other communal aspects such as dispute resolution, family law, and social interactions. These laws are based on principles of community ownership and resource management, ensuring sustainable utilization of natural resources aligned with the needs and values of the community. By providing a comprehensive framework for resolving disputes and maintaining harmony, customary laws contribute significantly to the preservation of the unique cultural heritage and identity of tribal communities in Northeast India.
History and legal aspect-
Colonial Influence and Adoption of Customary Laws: During the colonial era, the hill societies of North East India did not have codified laws for social control. Instead, they administered themselves based on customary laws, which were later adopted by the Colonial administration. Various legislative acts and commission recommendations expressed a policy of non-interference in the affairs of these tribes. Notable examples include the Assam Frontier Tracts Regulation 1880, Scheduled District Act 1874, Assam General Clauses Act, Montague-Chelmsford Reforms-1919, and Simon Commission. These acts and reforms recognized the importance of allowing these tribes to govern themselves according to their own customs and traditions. Exclusion of Hill Areas from Central and Provincial Legislation: Section 92 of the Government of India Act, 1935 played a crucial role in safeguarding the autonomy of hill areas in North East India. It stated that no Central or Provincial Legislation should apply to hill areas declared as
“excluded areas” or “partially excluded areas.” This provision further reinforced the policy of non-interference and recognized the unique governance systems and customary laws of these tribes.
Constitutional Safeguards and Recognition: In 1947, the Minority Committee of the Constituent Assembly acknowledged the tribes’ distinct customs, ways of life, and institutions such as tribal and village panchayats or councils. This recognition led to the inclusion of safeguards for the protection of tribal land, which is the mainstay of their economy. B.R. Ambedkar, one of the key architects of the Indian Constitution, emphasized the importance of preserving the tribes’ civilization and culture, advocating for their continuance.
Compilation of Customary Laws: The Law Research Institute, Gauhati High Court, has played a significant role in documenting and compiling various customary laws and practices from different societies in North East India. These include the Dimasa of Assam, Garos of Meghalaya, Wancho of Arunachal Pradesh, Mizo, Thankhul of Manipur, Ao of Nagaland, Riang of Tripura, Pati Rabha of
Assam, Angami Nagas of Nagaland, Apatani of Arunachal Pradesh, Tripuri of Tripura, Thadou Kukis of Manipur, and Chakma of Mizoram. These compilations provide valuable insights into the acquisition, disposition, and inheritance of property, as well as the status of women within these societies.
Land Ownership and Resource Management:
In the Dimasa society, proprietary rights are vested in a male member, and sons can only inherit paternal property. There are three types of property in the society: paternal property (including land), maternal property by daughters only, and common property mainly consisting of cooking utensils and brass metal. According to customary law, paternal property is solely inherited by the sons, maternal property by the daughters only, and common property is inherited by the sons and daughters equally. The widow of a deceased husband can be guardian of the younger members of the family but cannot have any claim over the property of the dead husband. She can remain as guardian of the family although her eldest son is regarded as the actual head of the family. However, she is entitled to be maintained by the inheritor if she stays in her husband’s house without remarrying.
A recent survey conducted by the North Eastern Social Research Centre, Guwahati, found that inheritance among the Karbis is patrilineal, with all sons inheriting the father’s land, with the eldest getting a larger share. However, the widow can inherit her husband’s property in rare circumstances except in the case of remarriage according to customary law. Karbi women play important roles in the family, especially in religious activities. After marriage, they retain their surname, partly maintaining their individual identity, and are involved in economic activities like cultivation, cutting, weeding, clearing jungles for jhum or collecting fruits and tubers. They are not allowed to attend the village court or partake in food along with men in religious and community feasts.
Among the Lalungs, inheritance is matrilineal, with the youngest daughter inheriting the mother’s property. This system appears to be very similar to that of the Khasis, possibly due to their location being adjacent to the Khasis. The various customs relating to tribal women’s right to inherit property show some influence of nontribal tribal societies, where parents often give a share, though not as a principle, to their married daughter. Land can only be cultivated after the formal approval of the village elder (Gaon Burah).
In terms of land ownership and resource management, there is a concept of community ownership and resource management among these tribes. The principles of sustainable resource use are also recognized. Customary laws play a role in land protection.
It is important to note that these customs and practices are specific to the Dimasa, Karbi, and Lalung tribes and may not be applicable to other tribes or communities in the region. The Aka tribe in West Kameng district of Arunachal Pradesh govern themselves based on their customary law and do not fall under the Sixth Schedule. They have recently had contact with the outside world and do not have the concept of land ownership. Instead, they practice community control and usufruct right over Central Public Procurement (CPRs).
The Dimasa tribe in North Cachar Hills of Assam have been influenced by dominant cultures, particularly through Hinduization by Bengali administrators during British colonial rule. Despite this, they still maintain their internal autonomy and are governed by their CPR-based customary law. They fall under the Sixth Schedule and have a district autonomous council. Some clans within the Dimasa tribe have dual descent, with property inheritance through the male line and clan and family names passed down through the female line.
The Garo tribe in Meghalaya follows a matrilineal but patriarchal system and is governed by their customary law as well as the Sixth Schedule. In the East Garo Hills, there are signs of class formation and strengthening patriarchy due to the introduction of rubber plantations. However, in the West Garo Hills, families continue to practice their CPR culture and have not integrated modern and traditional aspects of their society.
Marriage, Inheritance, and Family Law:
Customary law is a set of rules that binds a tribe’s culture and identity together through normative rules. It is an established system of immemorial rules that have evolved from the way of life and natural wants of the people, and are retained in the memories of the chief and his counselors, their sons, and their sons’ sons until forgotten or until they became part of the immemorial rules. These laws govern a person’s marriage, divorce, inheritance, child custody, and community relations such as tenurial rights over forests, lands, water bodies, and other natural resources. The basic to the customary law is its acceptance by the community. The laws may begin as customs with localized application but are accepted slowly by the rest of the community through a gradual process over a long period if it feels that its introduction is good for it or does not harm. They are mandatory and enforceable by the tribal chiefs while a custom is not enforceable. Because of the continuity it gives to the tribal community, the customary law becomes basic to its identity. In the North-East, the interface with formal law has changed the culture of many Northeast tribes. Culture encompasses the entire range of institutions, artefacts, and practices that make up our symbolic universe, including art, religion, science, sport, education, and leisure. However, it does not exclude activities normally deemed either “economic” or “political.” Customary law is intrinsic to identity and culture, as all elements of the law, such as rules and regulations governing marriage, property rights, and other social relations, are elements of the community’s culture, expressed in the form of laws. The main features of a tribe’s culture are community ownership, equity, and a relatively high status (but not equality) of women. The interface with formal law affects all these elements, as the stronger “modern” culture imposes itself on their tradition. The Northeast region’s tribes live according to their customary law, with only a few being constitutionally recognized. The 13th Amendment to the Constitution in 1963 recognized the customary laws of Nagaland and Mizoram through Article 371A and 371G respectively. These laws govern marriage, divorce, inheritance, and other social and cultural practices. However, no Act of the Union Parliament concerning religious or social practices, procedures, administration of justice involving their customary law and ownership and transfer of land and resources applies to them unless their legislative assemblies agree to it. Gender Roles and Women’s Rights- Customary laws are designed to maintain peace and order in societies, regardless of caste, creed, or sex. However, gender bias is often present within these laws, particularly for Northeast tribal women. This bias can lead to difficulties for women to exist in the same society as their male counterparts due to patriarchal set norms and the belief that women are inferior and subordinate to men. The study of customary laws should consider the age-old customs and traditions of the people, including the stereotype roles of women and men in the functioning of these laws. Women’s contributions to nation building are also crucial to consider. Customary law is believed to help maintain peace and order among members, but it can sometimes become inconsistent due to bias. Society’s set norms and rules are patriarchal, with women often sidelined by male dominance in almost everything. Northeastern tribal women are believed to enjoy more freedom as equal to their male counterparts, but this is not always the case. Women’s status will always be the same, with them remaining subservient to men. In today’s highly competitive world, a revision on gender relations is necessary. The stereotype notion of women being inferior to men still exists, as seen in traditional ideas of women being confined to domestic domains. Men’s supremacy overrides women in almost all important spheres, even in the home where women are considered kings or queens. This sense of fear arises from the inferiority complex, where the patriarchal structure dictates that women remain submissive to their men regardless of the situation. By studying the roles of women in various socio-economic spheres and their contribution to nation building, we can better understand the complex relationship between customary law and gender. The socially constructed division of labor consists of men performing heavier, strenuous jobs and women performing lighter, fragile tasks. Women are often seen as weaker in society, but there are some competent women who contribute to their men’s work. This division is evident in customary laws, where women are restricted from various aspects of life, such as family and village administration. Women are treated as inferior and lower to men in almost every sphere of life due to patriarchal set norms and the societal inferring of women being inferior and subordinate to men. These norms maintain social order while prescribing rules of conduct for each individual, age, and sex-wise. Even customary laws set for the welfare of society have biases. Despite their contributions to society, such as agricultural production, resources, and nation building, women are not recognized by society formally. For example, tribal women contribute to the sustainability of society and family, and are consulted by society to decipher edible and nonedible food found in nature. However, they are nowhere better off than men in terms of their status in society. To study customary laws, it is essential to consider age-old customs and traditions, including stereotype roles in the functioning of customary laws and the roles women play in various socioeconomic spheres and their contribution to nation-building. Women’s voices should be recorded and their interests should be considered. By understanding these customary laws, we can better understand the complex relationship between gender, societal norms, and the unique experiences and perspectives of women in various societies.
Cultural identity and modern influence- Customary law acts as the linchpin binding cultural identity community ownership, and equity in tribal societies. Despite being constitutionally recognized in some cases, the interface with formal law challenges the traditional way of life. This impact is felt across institutions, from art and religion to economic and political spheres, revealing the evolving status of women in these changing landscapes.
Conclusion**
The paper concludes with reflections on the importance of customary laws in maintaining tribal identity, the challenges posed by modernizing influences, and the need for gender-sensitive reforms within these laws. Recommendations for future research, including more inclusive documentation of women’s experiences and greater examination of the intersection between formal law and customary practices, are provided.
