Keywords for India: A Conceptual Lexicon for the 21st Century by Rukmini Bhaya Nair & Peter Ronald Desouza

Author:Rukmini Bhaya Nair & Peter Ronald Desouza [Nair, Rukmini Bhaya & Desouza, Peter Ronald]
Language: eng
Format: epub
Tags: Language Arts & Disciplines, Linguistics, Sociolinguistics, General
ISBN: 9781350039254
Google: u6XFDwAAQBAJ
Publisher: Bloomsbury
Published: 2020-02-20T20:50:33+00:00

Tribal customary law

Melvil Pereira

Tribal customary law is defined as the body of traditional practices observed and procedures followed in an indigenous or tribal community. However, it is a contested term in the academia. Some scholars refuse to recognize it as law, treating it merely as one of the sources of law, because it lacks clarity, certainty, legitimacy and sanctions. Other scholars assert that it is indeed a system of laws consisting of all the customs and practices found in a particular community. These scholars hold that customary law, like statutory law, enjoys social sanction and promotes law and order in society.

Given these divergent views, it is useful to begin by distinguishing between ‘custom’ and ‘customary law’. A custom is a usage or traditional way of doing things passed down the generations. A custom attains the status of law when it is recognized as useful or even necessary for maintaining harmony in society and its violation leads to penal action. Thus, customary law is part of social heritage and differs from statutory law, which is enacted by a sovereign or legislature. Tribal communities all over the world are falling back on their customary law in order to preserve their culture and identity.

There is no doubt that nowhere else are tribals more protected than in India. There is also no doubt that tribals have nowhere a greater say in managing their own affairs than in Northeast India. This is because of the special provisions in favour of tribal communities by virtue of Article 371 and the Sixth Schedule enshrined in the Constitution of India. For instance, Article 371A and 371G protect Naga and Mizo Customary Law, respectively, as they state that no Act of Parliament in respect of Naga or Mizo Customary Law and Procedure shall apply to the states of Nagaland and Mizoram unless their respective legislative assemblies so decide through a resolution.

Many of those who favour the continuation of customary law also recognize its limitations. Customary law is essentially patriarchal, resulting in the denial of rights to women in inheritance of property, maintenance and governance. It also systematically excludes women from decision-making forums.

References

Pereira, M., B. Dutta and B. Kakati , eds. Legal Pluralism and Indian Democracy: Tribal Conflict Resolution Systems in Northeast India. New Delhi: Routledge, 2018.

Singh, K. S. Tribal Ethnography, Customary Law and Change. New Delhi: Concept Publishing Company, 1993.

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