Customary Law and Constitutional Provisions for the North East:
Laws of the country have defined or have guidelines for protecting the lives and property of humans. Over a period of time, there have been attempts to enact gender sensitive laws, but those have not achieved the ends. Since colonial period onwards various legislations made attempts to ‘emancipate’ women from the clutches of superstitions and backward traditions.
Legal structures have been invoked in discussing and formulating justice for women. While reposing faith on laws and legal structures for addressing the questions of inequity, violence and other such issues women activist have also come to recognise the patriarchal nature of law, law makers and implementers. Law was not removed from society ; culture and religion have led to critical engagement with law and which has led to the demand for reformulation of more gender just laws. Flavia Agnes’ work has focussed on discussing how personal laws in India have inherent discrimination in its interpretation and application.
Another key area of concern is the overlap or apparent conflict between customary law/ personal law and secular law of the State and the implications of imposing or having a Uniform Civil Code (UCC). Flavia Agnes’ work discusses how in the name of gender justice in India Hindu right wing forces have attempted to impose UCC on the minorities and how the making and framing of personal law itself is a practice rooted in politics. Nandita Haksar further elaborates it by pointing out that UCC can be used by the State to break up the complex societies of North East by imposing an alien legal system based on individual liberty and private property.
In North East the situation is made more complex by the presence of customary laws, the general legal apparatus, the Indian penal code and draconian laws, like AFSPA, which gives impunity to perpetrators of violence. This complex layering of legal systems has led to debates and also the need to address the question of new jurisprudence.
Human rights activist like Nandita Haksar has stressed that tribal laws form a part of tribal jurisprudence , and though many feminist have critiqued tribal customary laws as anti- women and patriarchal , and according to her its strength lies in the concept of ‘collective rights to natural resources’ which forms a basis of the society. Such statements need to be located in the growing ambit of the tussle between law and customary laws, and also within the growing feminist consciousness which has started raising questions regarding land rights, poperty ownership rights etc. One has to acknowledge the fact that the ‘so called egalitarian basis’ of tribal societies have long eroded and have been replaced by notions of private property. Traditions of community ownership have been modified in the course of time interacting with land revenue regimes. Because tribal societies are also hierarchical and often changes in such laws have favoured the tribal elites. And also since the issue of land, land rights and customary laws is intrinsically linked with identity issues, especially in a situation where the region has witnessed many decades of conflict and struggles, the question of framing gender sensitive laws often is seen to run against the interest of the community. Some constitutional protection has been given in the form of the 6th Schedule in 3 districts of Assam, Meghalaya and some parts of Tripura. Articles 371A and 371G recognize the laws of Nagaland and Mizoram and in other areas the tribes living according to customary laws though law of the state recognize individual ownership which influences customary laws to alter itself. Private ownership has meant ownership by men. These changes are visible among the Dimasas, the Garos and also the Khasis.
The Indian State has in fact encouraged codifying tribal customary laws. But there are inherent problems with codification as tribal laws have historical evolved and are still changing. Codification will fix them and conferring upon them the permanency of the written word will ruin the flexibility of such customary practices. Such fixity would in fact empower patriarchal structures which muster the strength of written law to dis- empower women. The question of retaining customary laws without codifying them as opposed to being subjected to a UCC is fraught with problems. One cannot get celebratory about the presence of customary laws, in fact in very few societies in North- East India women get to own property or have land rights. Among the khasis and Garos property is passed from the mother to the youngest daughter as a part of the matrilineal system but Khasi society cannot be termed as matriarchal. Since economic rights of women are considered to be of utmost importance hence discussion on the land rights and property rights needs to be reviewed in light of this conflict.
There are other grey areas where gender sensitive legal guidelines are to be implemented. For example the North East still needs to have such a structure in bringing justice in cases of witch hunting, as in other states like Jharkhand and Bihar.
Laws of the country have defined or have guidelines for protecting the lives and property of humans. Over a period of time, there have been attempts to enact gender sensitive laws, but those have not achieved the ends. Since colonial period onwards various legislations made attempts to ‘emancipate’ women from the clutches of superstitions and backward traditions.
Customary law, in contradistinction to legislation, is an unwritten law. Custom is the oldest source of law and has validity and enforceability. It is not made ; it is a spontaneous growth with the growth of a community. It comes into existence as a community is accustomed to following a particular course of conduct over the years dating back to an immemorial antiquity (aolekar in Barooah, 2007;VI). In all ancient societies, the procedural law was scanty compared to the quantum of substantive laws prevalent among them. In ancient Hindu system, procedural law was not significant till the time of Narada, Brishapati and Katyayana. These was regarded as matters to be governed by practice of the Courts rather than by inflexible and mandatory rules of procedure. In Hindu system, in the middle ages, ordeals and oaths were not uncommon in India, but in the Vedic period ordeal seems to have little known. Even Kautiliya’s Arthashastra does not recognize ordeals. Hieun Tsang, however, describes four kinds of ordeal prevalent in India at the time of his travels namely, water, fire, weighing and poison. Some of the Dharmashastras also favoured ordeals, but Gautama declared that where parties were not agreed, the discovery of the truth must be made through witnesses. The Dharmashastras divided the procedure of trial into four stages, namely, plaint, answer, evidience and decision. If we look into our Hindu and Muslim personal laws, one will find the importance of customary law in the present day context. Even our constitution has kept the provision for incorporation of customary laws.
Article 13 (3) (c) of the Constitution emphasis the ambit of the expression ‘law’ in order to ensure that the paramount of the Constitution extends also to non- legislative sources of law, that is to say, custom or usage having in the territory of India the force of law. Article 372 (1) put emphasis on continuance in force of existing laws and their adaptation and says that all the laws in force in the territory of India immediately before the commencement of this constitution shall continue in force therein until altered or repealed or amended by a competent legislations or other competent authority.
Assam is the abode of various ethnic groups such as Bodo, Rabha, Dimasa-Kacharis, Tiwa, Mishings, Karbi and many others. Among them, the folk laws are still maintaining in a sophisticated manner. Most of these groups have their own autonomous councils. The customary law and traditional political institutions are recognized under the new system.
Customary law consists of the indigenous customs of traditional communities. Every ethnic group in the North East has evolved its own discrete customary legal system of rules that are binding on its members. Unlike ordinary social habits and observances, the rules carry along with them local sanction for their breach. For the most part, the rules are unwritten, though efforts are now being made to compile them in unwritten form. Customary laws are not uniform across ethnic groups can be traced to various factors as language, religion proximity, origin, history , social structure and economy.
SOCIAL OFFENCES (BAAD) IN THE BODO SOCIETY :-
The Bodo term for offences of a social nature is baad. If some person does offence in the society particularly concerning moral turpitude , he is treated as a guilty person and is obliged to perform penance udrainai with some strict social customs. The Bodo people maintain some strict principles of morality. The following rules about offence are strictly observed by the Bodos-
A person is taken as moral guilty, if he is engaged in illicit sexual relation with female relatives, such as mother, daughter-in-law, sister-in-law, niece, wife of the younger brother and any other close female relatives.
If he touches the body of the wife of his younger brother or of the elder sister of his wife.
Lastly, if he is involved in bestiality and sex relation with a bitch, a female pig or cow.
Indulging in false accusation with the evil motive is also concerned a social offence.
Traditionally the offences are divided into five categories
Agorbaad :- incest, i.e, illicit sexual relation between related person, physically assault on one’s own mother, father, illicit sexual relation with a person belonging to different religion.
Phongslod baad :- If somebody touches the body of a young girl of any caste; and if someone cuts the tail or leg of a cow then the penance must be performed under the seven bows method.
Daokhibaad :- This offence takes place if some eats the meat left half- eaten by a tiger or vulture. And if someone received money by cutting somebody ele’s hair.
Khaoalibaad :- If someone deliberately accuses somebody and puts blames on some others without any reason, he must perform penance in a simple way. If any person is convicted of charges of five categories as discussed above then he or she must perform penance under the Purification methods of the Bodos. The guilty person offers a chicken to Bathou Bwrai. From the body of the sacrificed chicken some pieces of meat are detached and thrown to the sky with the help of a bow and arrow. (Brahma 1998).
BODO CUSTOMARY LAW AND WOMEN
Bodo women have sufficient freedom to move in the fields, farms and forests etc. The sex ratio is favourable and there is no female infanticide, no bride burning like the other parts of India. As Sidney Endle observes “Among the Kacharis women do not perhaps occupy the same influential position as seem to be enjoyed by their sisters in the Khasi hills where something like a matriarchate apparently hold the field of social and domestic life. Still, with this interesting race the position of the wife and the mother is far from being a degraded one.”(Endle: 1990:22). Endle goes on to say that the women in Bodo society enjoy in their social and family life enjoy ‘a large measure of freedom’. What Endle says is founded on the social reality that he observed in the early decade (first decade) of the twentieth century. In Bodo society men and women are treated alike and there is high participation of women in ritual ceremonies and family affairs. Child marriage, purdah system, dowry, sathi, prohibition of widow remarriage are not seen. In the Bodo the socio- economic set up, it is women who occupy dominant position rather than the men; consequently their social status is much higher.
As per the evidence from the Bodo literature of Colonial Assam,we come to know that, Bodo women enjoy freedom to choose their spouse also . The first Bodo short story “Abari”, written by Late Ishan Mochahari in the year 1932 provides information of the status of Bodo women during colonial period. Abari is the protagonist of the story and who is differently abled girl. But she refuses to get married with a physically challenged person even under pressure of her family members. Because, she was confident that she could stand on her feet.
The customary laws among the Bodos related to marriage and inheritance of property allow some provisions for rights of women. The women who is married can exercise right over the assets she carry with her from the paternal house. Her husband or in laws cannot stake claim over such property. The Bodos have six kinds of marriage system. The sixth or last one is known as “Donkha Habnai” i.e. widow remarriage. Since the time immemorial this kind of marriage system is prevalent. As per the laws and customs relating to this kind of marriage, the ‘dongkha’ (groom) has no right on widow’s property. But, sometimes, on the basis of agreement, he may enjoy some rights on such property. On the other hand ‘Dongkha’ has to follow the widow’s religion, tradition and other aspects of livelihood. When landed property is distributed among children after the death of parents, the girl child is also given a share.
DIVORCE :-
Divorce is allowed in the Bodo society. If both husband and wife desire divorce mutually then it is performed by tearing a betel leaf. This is called pathwi lai bisinai in Bodo. If the husband divorces without any reasonable ground he is to bear the responsibility of her livelihood for a certain period. Sometimes, it is observed that the question of divorce is put up in a big gathering of the public for the solution of the case.
THE BRAHMA MOVEMENT AND ITS IMPACTS :-
The spread of education and consequent political awareness among the Bodos along with Govt. policy to provide special privilege to the Scheduled Tribes led to the formation of the organisation like “Bodo Kachari Chatra Sanmilani” in 1919. This was preceded by a strong socio- cultural movement among the Bodos of the then Goalpara in 1913 under the leadership of Gurudev Kalicharan Brahma along with few prominent Bodo personalities joined hands to convene the first Bodo Mahasanmilani . In that meeting regarding education of Bodo women the following resolutions were adopted-
It was resolved that action plans for the Bodo women be taken up.
It was resolved that actions be initiated for the establishment of Primary and middle schools in the Bodo dominated areas. Even the Bodo girls should seek education in these schools.
In 1925, at Rangia session, again resolution was taken to impart education among the Bodos ; the following was the resolution of the session-
It is resolved that both boys and girls must be provided educations equally, only than Bodo society can be progressed.
In 1929, at Roumari village of Bongaigaon, the Bodo Mahasanmilani has resolved a strong resolution to prevent the practices of the production of country liquor. The resolution was-
“It was resolved that the selling and consumption of country liquor be stopped and volunteers would move from village to village to keep an eye on this, and even break the utensils used for making the country liquor”. (Brahma 2008).
But including all other agricultural activities, the wine productions of the Bodos have significant economic importance. Usually, a section of poor people have been using it as a source of earning. This kind of earning is generally made by women and their male counterpart assisted them. But, such kind of practice is hated by a section of learned Bodo people and other neighbouring communities. Therefore, the Bodo Mahasanmilani decided to prevent it. Boroni fisa o’ aiyen, (1913) the first book on customary law among the Bodos also cautions the people against the excessive drinking habit among the illiterate Bodos of South Goalpara in those days.
Boroni pandulipi is another book on the customary law meant for the followers of Brahma religion. This book on customary law has made the same provisions for rights of women in relation to marriage, social life and division of property. Some books on customary laws have been published by Boro samaj in different districts. Boro samajni sangbidhan arw nem khanthi is the most prominent among them as it tries to encode the customary law and practices as followed by the followers of Bathou, Brahma and Bodo Christians. This book on the customary laws of the Bodos make specific provisions on the property rights of women , inheritance and division of ancestral property and marriage and divorce. For example, as specified in Section 19 (2) the Bodo women has four types of property-
By will.
By way of donation.
By way of marriage.
Inherited from the family of her husband , who died without any offspring and property inherited from the parents. (Brahma:2005:34).
Section 22, 23, 24 of the book make provisions for inheritance, use and division of family and parental property. Like other books on bodo customary law, the book make specific provisions for punitive measures against those involved in violation of social law and discipline including those on the chastity and dignity of women.
WITCH HUNTING :-
Among the Bodos witch hunt is a very recent phenomenon started at the middle decades of the 20th century. Although there are no previous written records of the prevalence of witches and witchcraft in the Bodo community, before 20th century there is no mention of witches among the Bodos. The earliest works on the Bodos by Rev. Sidney Endle has no mention witch and the authorities of Bodo folklore also suggest that there is no mention of witches in folk tales. In Bodo witches are called dyna and through dyna are mostly women yet there are instances of male dynas as well. Nevertheless, belief in witchcraft continues to this day and the dyna has always being victimized for any evil that befalls the community. At present it has become a convenient way to settle personal scores by framing a person as a dyna and thereby ostracize and inflict harm with sanction of the entire village. In most of the cases of witch hunting it is observed that villagers approach the Ojha as immediate solution to the severe health problems and on failing of which, the ojha gives his provoking predictions causing the frenzy of accusing fingers at someone vulnerable, specially women allegedly declared to be a witch and haunt by the villagers collectively. Now a day’s organization like ABSU, ABWWF etc. do campaigning and organizing awareness programs to stop such kind of beliefs and practices.
CONCLUSION :-
Folk law, customary law is one of the important aspects of folklore studies. In the North East, folk laws are part and parcel of the social fabric of the ethnic groups. They are maintaining its since time immemorial. It is seen that the studies on folk law within the ambit of folklore in the North East is scanty. However, various aspects of folk law are covered in tribal studies, cultural studies, law research, anthropological research and others. Folk law is the result of traditional wisdom and rooted in the traditional communities. Social folk customs of the ethnic groups of the north east has been one of the prime focuses of folklore research. In these studies, various folk laws are incorporated. It is important as our Constitution has put prime emphasis on customs and usuages of ethnic groups by incorporating various provisions for the north east. The role of Autonomous Councils, Regional Council, Village Councils, traditional institutions are significant.
In legal parlance, customary law can be utilized as an alternative dispute redressal mechanism. It is pertinent to mention here that the huge numbers of cases are pending for disposal under the modern judicial system in India. So, the Hon’ ble Supreme court is always looking for ADR. In a recent development emphasis is laid on customary laws and practices of the North East. Efforts are being made to find out the possibility of codification of customary laws. It is essential but difficult job. Because customary laws vary from one ethnic group to another, one place to another, one region to another, sometimes it varies from village to village. An interdisciplinary approach of folklore, anthropology and law can provide valuable inputs regarding codification of customary laws in the North Eastern India.
[Articles and Research work carried and written from various research papers, books and journals ]
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