Various forms of laws have existed, been implemented and been followed even in the most primordial communities and societies. These laws could have been framed by an individual considered and accepted as a leader or by a group of individuals constituting a form of council, considered and accepted as the leadership. Such laws may have been very basic, but they catered to the needs of the community and reflected its understanding of human nature and social interactions at the time. Some of these laws still exist in tribal communities and societies across the globe. A primary example is the customary laws of the Naga tribes within and beyond the State of Nagaland, which are recognised, protected and guaranteed under Article 371(A) of the Indian Constitution. Examples of such provisions can also be found in the various subsections of Article 371 relating to states such as Meghalaya, Mizoram and Sikkim.
Though ancient, Naga customary laws are comprehensive, encompassing not only punitive measures for crimes but also issues relating to marriage, property, inheritance and child custody. Our customary laws are also unambiguous about relations and conduct with other villages and tribes, wars, reparations and economic relations. In fact, our customary laws address almost all aspects of human life and interaction—social, political, economic, cultural and religious. Before Christianity was introduced, the Nagas had their own indigenous religion, which is still practised in small pockets among a few tribes. There were clear-cut rites, rituals and rules governing the observance and celebration of various festivals, which were mostly based on seasonal agricultural cycles. However, we also had rites and rituals that were observed before and after wars involving head-hunting. With the introduction of Christianity and the efforts of the British, head-hunting ceased, and rites and rituals relating to agriculture also largely disappeared. However, many agricultural rites and rituals have been blended with Christianity and are still practised.
Naga communities and society, being agrarian, have always depended on prayers and supplications for timely rains and sunshine to ensure good harvests, as well as celebrations and thanksgiving for bountiful harvests. These practices will continue, irrespective of which God is worshipped. The fact that the Nagas have adapted and happily blended their old religion with the new speaks of a certain flexibility in their transition to changed circumstances. We have undergone such a transformation that today we have monetised our sacred traditional festivals, originally meant for specific purposes and observed at specific times, by packaging them as tourist attractions for economic benefit. Obviously, necessities take precedence over the sacred in today’s drastically changed and increasingly demanding political and economic scenario.
It must be remembered that ancient and traditional Naga communities and society were also extremely patriarchal. Consequently, customary laws relating to marital issues such as divorce, land ownership, property, inheritance and child custody were unfriendly to women. True, a number of tribes have evolved with the times and changed some of these laws to make them more women-friendly. However, these remain exceptions rather than the rule. Besides, some changes may be limited to individual villages and certain areas rather than representing comprehensive changes across an entire tribe. This must be understood in the context of traditional Naga society, in which each village was a fully sovereign republic. To understand customary laws relating to women’s personhood, it must be made clear that women are not considered equal to men—a characteristic typical of patriarchal ideology. Therefore, women have traditionally and customarily been barred from participating in decision-making. Since all laws are made and implemented by men, women naturally have no say and are excluded and marginalised from society, with the consequences extending to their own lives.
With Christianity came modern education, but women’s lot has remained the same because Christianity and Naga traditions and customs relating to women have blended seamlessly, as Christianity itself is patriarchal. Moreover, as we see every day, education has had little impact on age-old traditions, customs, cultures, religions, beliefs, biases and prejudices. However modern and technologically advanced a society may be, when men and even some women believe deep in their hearts and minds that the sexes are unequal, education without the cultivation of a scientific temper is like water on yam leaves (kochu patta).
The issues that need serious attention are land ownership, property and inheritance. Broadly, we have several categories of land ownership: ancestral, acquired and gifted. Customary laws apply only within the jurisdiction of a village, and land-related provisions under these laws are generally clear-cut and uncontested within that jurisdiction. However, land laws are different in municipal and cadastral areas, where the law does not differentiate between the sexes. The problem begins when land-related customary laws are sought to be imposed on urban areas, specifically municipal and cadastral areas. Traditionally, our customary laws prohibit women from owning land and also stipulate that a widow without sons has no inheritance rights. A widow with only daughters is left helpless even in municipal and cadastral areas when members of her deceased husband’s family impose such customary laws, despite the land and other property being shared marital assets.
Irrespective of their educational levels or social status, numerous Naga widows suffer from this injustice, and this is precisely where a serious review of customary laws is required. Several widows have approached the courts; some have received justice, while many have not. Court proceedings are also slow and unaffordable for many. We have a custom of dividing property after a man’s death, with such matters in villages being adjudicated by the all-male traditional village council. Some families have invited these councils to urban areas to oversee the division of property, where they adjudicate according to customary laws. The outcome is predictable.
Because our customary laws are protected by the Constitution, it is more than high time to review those laws that contradict or are inconsistent with the principles of equality and justice and the Fundamental Rights guaranteed to every citizen of India. Women, especially Naga women, have been living without the full protection of their constitutional rights simply because the Constitution recognises, protects and guarantees our customary laws in toto, without adequately examining the effects of this injustice on women. What also needs to be taken into account is the insatiable greed thinly veiled under the guise of customary laws, especially on the part of those who lack expertise in our nuanced customary laws. As a corollary, an in-depth study needs to be undertaken to assess the expertise of every individual elected, selected or nominated to adjudicate on Naga customary laws, customs and traditions, as well as modern laws. Such a study could help bring customary laws into consonance with constitutional provisions and other evolving modern and humane laws.
Monalisa Changkija is a Dimapur-based veteran journalist, poet, and former proprietor, publisher and editor of Nagaland Page.