28 Tribal customary law
Dr. Vijeta
Contents
Introduction
1. Customary Law in North-East
2. Conclusion
Summary
Learning objectives
Through this module, one will be able
- To know about tribal customary law in different tribal groups of India
Introduction
Regardless of its formal status, most tribes regulate their community and social affairs according to the customary law and treat it as integral to their culture and basic to their identity. This law reinforces the tribe‟s age-old traditions and binds it together through normative rules by regulating the social and personal relations of its members. There is no universally accepted definition of a customary law. It can be described as a set of rules through which a tribe practices its culture and expresses its worldview. It is “an established system of immemorial rules which had evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his counselors, their sons and their sons‟ sons (sic), until forgotten, or until they became part of the immemorial rules…”. It governs a person‟s marriage, divorce, inheritance, child custody, etc as well as community relations such as tenurial rights over forests, lands, water bodies and other natural resources. Thus, a customary law is the habitual course of conduct of a society and contains dos and don‟ts based on its norms, practices and usages, mechanisms such as taboos, sanctions, social rituals, culture, public posture and ethics of each individual. These norms thus restrain their pattern of behaviour and regulate the social, cultural and religious aspects of the individual and the family. 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 it no 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.
1. Customary Law in the North-East
However, the interface with the formal law has changed also the culture of many Northeast tribes. By culture one means “that entire range of institutions, artefacts and practices that make up our symbolic universe. In one or another of its meanings, the term will thus embrace art and religion, science and sport, education and leisure. By convention, however, it does not embrace the range of activities normally deemed either „economic‟ or „political‟. Others disagree with this stand. Huizer, for example says “During the last decade it has become increasingly difficult to deny that anthropology has anything to do with politics.” He cites persons like Kathleen Gough to conclude that, anthropology or the study of culture is a child of imperialism. He quotes others like Beals to state that much research on culture has been done for the armed forces and that it is intrinsic to the security apparatus (ibid: 4). Singer, analyses history to show how culture is part of a people‟s worldview or interpretation of the surroundings and that it conditions their understanding of other peoples. Thus, one does not have a single view of culture. One can agree with Milner and Browitt that it is the “entire range of institutions” without excluding politics or economics from it. We add that it is intrinsic to identity. All the elements of the customary law such as the rules and regulations governing marriage, property rights and other social relations are elements of the culture of a community, expressed in the form of laws. They protect its worldview and value system by giving them a concrete form. Thus the customary law becomes intrinsic to its identity and culture. 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 the formal law affects all these elements. As Milner & Browitt say, in this interface a community both interprets other forms according to its own worldview and changes its own systems. Elements of the customary law change because the stronger “modern” culture imposes itself on their tradition.
However, the encounter with the “modern” formal law is not uniform throughout the Northeast. Most tribes of the region live according to their customary law but only a few have been constitutionally recognised. In 1963 the 13th Amendment to the Constitution recognised the customary laws of Nagaland through Article 371A. The 53rd amendment of 1986 recognised those of Mizoram through Article 371G. This recognition includes laws governing marriage, divorce, inheritance and other social and cultural practices and rights like community ownership. No Act of the Union Parliament concerning the 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.
The Aka of West Kameng district in Arunachal Pradesh are close to their tradition and govern themselves according to their customary law. The Sixth Schedule does not apply to them but it has not had much impact on them because their contact with the outside world is recent. This Jhum practicing tribe lacks the very concept of land ownership and only has the tradition of community control and of usufruct right over the CPRs. In the Jhum season every family cultivates as much land as it needs. After it the land reverts to the community. However, slow change is visible among them. Today some claim individual ownership but others with a salaried job call themselves landless since they have lost their right over the CPRs by not practicing Jhum anymore.
The Dimasa of North Cachar Hills in Assam have been exposed to the dominant cultures since their Hinduisation by the Bengali administrators who accompanied the British colonial rulers but have retained their internal autonomy, continue to be governed by their CPR based customary law, come under the Sixth Schedule and have a district autonomous council. Many of their clans have dual descent with property inheritance through the male line and the clan and family name coming through the female line. However, their elite are moving towards individual pattas. One of their leaders owns over 200 acres. On the other side, a voluntary agency has introduced oranges and other commercial crops in some villages without changing the ownership pattern. Some families that have accepted individual ownership have conferred inheritance rights also on women. Thus the trend towards individual ownership goes hand in hand with change of their land use without changing the land ownership pattern drastically.
The matrilineal but patriarchal Garo of Meghalaya are governed by their customary law and the Sixth Schedule. Many of them in the East Garo Hills have begun to show signs of class formation and of strengthening patriarchy. An important reason of this change is the introduction of rubber plantations. It got them to interact with the administration that gives loans and subsidies only to individual owners and “heads of families” that most financial institutions interpret as male. The families we studied in West Garo Hills continue their CPR culture and have not planted commercial crops. Thus, they have not combined the modern with the traditional that the Dimasa families can become if more accept recent changes.
On the other side, the Adibasi of Jharkhand origin whom the British brought to Assam in the 19th and 20th centuries as indentured labour to work in its tea gardens are not included in the Schedule though they speak of a customary law that has very little value today. So they represent the type of modernization that results in impoverishment and exploitation. Landlessness is the highest among them and literacy very low. Though they have lived in Assam since the 1850s, they continue to be considered non-indigenous. As late as the May 2004 general elections a candidate appealed to the voters to recognize him as indigenous and reject his opponent from the plantation laborer community as non-indigenous.
The Boro, a plains tribe not under the Sixth Schedule, have won a Boro Territorial Council (BTC) after a struggle but till recently their community based customary law was not recognized. As a result they have almost fully internalized the ideology of individual ownership in the sense that those living on the CPRs call themselves encroachers while others like the Aka and Dimasa consider themselves CPR dependants. The BTC has recognized their right partially but has not granted them the Sixth Schedule status. Also the Rongmei, a Scheduled Tribe of Bishnupur district in Manipur are not governed by the Sixth Schedule. Several have lost their land to ethnic conflicts and some to the Loktak project but have not even been compensated since much of what they sustained themselves on was CPRs that the law does not recognize as their livelihood. These two tribes represent the interaction of their CPR based customary law with the individual based administration that can deprive them of their livelihood with no right to any alternative.
The Angami, a major tribe living mainly in the Kohima district of Nagaland numbered 97,433 in 1991. Terrace cultivation based agriculture was their main economic activity till recent years many took up salaried jobs. They were in the forefront of resistance to the British regime and after 1947 they led the Naga Nationalist movement and played a major role in the ethnic movement under the leadership of Z. A. Phizo. In the process they underwent rapid social change and gained access to modern education and political systems. They have the Village Development Board that also has women among its members. Thus, tradition and modernity live side by side.
Other provisions are made through the Sixth Schedule that applies to the whole of Meghalaya and the Karbi Anglong and N. C. Hills districts of Assam. Some other tribes of Assam and Tripura have district autonomous councils (DAC) without the Sixth Schedule. Some elements that are specific to the Sixth Schedule or the customary law have not been granted to the DACs outside the Sixth Schedule areas while the DACs in the Sixth Schedule areas have transferred to themselves powers such as control over land, forests and other natural resources. Under their customary law they belong to the village council. Most other tribes of Assam, Manipur and Arunachal Pradesh (AP) live according to their customary law without State recognition. The Manipur tribes have some protective mechanisms while the AP tribes only have the administrative rules framed in the colonial age that cannot be called protective mechanisms. Individual family as long as it cultivated it. Traditionally the Karbi villages did not have a fixed boundary or name since they kept shifting. Communal ownership was the norm among them. The Boro followed the Ahom custom of allotting 3 purahs (about an acre) of land to each family in return for free labour for about a third of the year.
Community ownership was basic to intra and inter-generational equity as well as the relatively high status of women. When a community controls the resource, every family is able to use it according to its need since it cultivates land according to the number of mouths to feed. Community ethos ensured inter-generational equity because they treated even individually owned land as their community livelihood coming down from the ancestors that they could use to meet their needs but had to preserve for posterity according to ecological imperatives. Studies show that tribal natural resource management was by and large geared to this need. For example traditionally Jhumia tribes cultivated only up to 20-degree slopes and planted root crops before the rains to ensure soil protection. Then followed other crops harvested in different months in order to ensure food supply for most of the year till fruits, edible leaves and roots became available. Most tribes left the plot fallow for 18 years after cultivating it for 3 years in order to let forests regenerate. Only the Tripura and some other tribes in the predominantly bamboo growing regions followed a five-year cycle suited to that crop. Some tribes in Mainland India practised also bush-fallow Jhum. They left the plot fallow for 5-6 years for bushes, not forests, to grow. One is not aware of this system anywhere in the Northeast. Jhum is considered environmentally healthy for the hilly terrain.
Before the Jhum season, the village council made up of men alone decided which area was to be cultivated that year, which family was to get how much land according to the number of mouths to feed, which family with excess labour would help which one with very few adults and the day before which cultivation would not begin. After it the man of the house chose the plot and performed the worship to mark the beginning of cultivation. At this stage the woman took charge of production and organised work. As a result, gender-based division of work was more gender friendly among the Jhum cultivators than in settled cultivation-based communities. In settled agriculture, the man does what is considered difficult work such as ploughing and digging. Back breaking work like transplantation and harvesting that involves long hours of standing in wet fields is left to women. In Jhum, on the contrary, hoeing, digging and other difficult work is shared by men and women. Even keeping watch at night that is considered dangerous work is shared in the sense that the whole family shifts to the Jhum field at that time.
Differences did exist so did inequalities. For example, the tribal woman‟s status was higher than in caste societies but she was not equal to men. That too had exceptions. For example, despite their CPR based Jhum economy, traditionally Aka women‟s status was low. So, one can only say that if resources like land, forests and water bodies are community owned women have a say in their management. The relatively high status it confers on them is based on their role as economic assets in the family, not in their society. Most tribal traditions kept a clear separation between the family and society. Women were in charge of the family production and economy while men controlled social power. Even the matrilineal tribes like the Khasi, Garo and Jaintia of Meghalaya are patriarchal. Descent and inheritance are through women, they are uxorilocal but social power is with men. They control the village council and other decision-making bodies and also take decisions concerning land alienation.
2. Conclusion
In the discussion on the tribal customary law, as intrinsic to their culture to identify the impact of the interface of the customary law with the formal on their culture of community ownership, relatively high women‟s status and equity. The contention of this analysis is not that modernization should be abandoned but only that a new system cannot be imposed on an old one without looking at the principles on which the latter is built. Secondly, one cannot absolutise or romantise the elements of past such as community ownership. For modernization to be just, one has to begin with their triple value system of equity, resource sustainability and women‟s status and push them towards class and gender equality. In practice, instead of taking the tribes towards such equity many modern inputs introduce class formation, strengthen patriarchy and force their communities to make a transition from their constructive to a destructive dependence on the natural resources. It shows that if measures are not taken to counter these impacts, modern inputs can modernize the negative aspects of their tradition. For example, a hierarchy existed in most tribes but every family was provided access to the resources and social systems required for its sustenance. That hierarchy seems to have taken the form of a ruling economic class. That discrepancy can be avoided if one begins not with their customary law understood as rules and regulations but with the value system guiding it. Its objective is to take it towards the type of equity meant for today‟s society. In other words, the solution lies neither in imposing modernization nor in romanticising their past. One has to find ways of building a future on their past values by adapting them to the present.
Summary
Regardless of its formal status, most tribes regulate their community and social affairs according to the customary law and treat it as integral to their culture and basic to their identity. This law reinforces the tribe‟s age-old traditions and binds it together through normative rules by regulating the social and personal relations of its members. There is no universally accepted definition of a customary law. It can be described as a set of rules through which a tribe practises its culture and expresses its worldview. It is “an established system of immemorial rules which had evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his counsellors, their sons and their sons‟ sons (sic), until forgotten, or until they became part of the immemorial rules. Thus, a customary law is the habitual course of conduct of a society and contains dos and don‟ts based on its norms, practices and usages, mechanisms such as taboos, sanctions, social rituals, culture, public posture and ethics of each individual. These norms thus restrain their pattern of behaviour and regulate the social, cultural and religious aspects of the individual and the family. (Visto,2003). Basic to the customary law is its acceptance by the community. The laws may begin as customs with localised 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 it no harm. They are mandatory and enforceable by the tribal chiefs while a custom is not enforceable (Narwani,2004). Because of the continuity it gives to the tribal community, the customary law becomes basic to its identity (Cobo,1986). Tribal customary law, as intrinsic to their culture to identify the impact of the interface of the customary law with the formal on their culture of community ownership, relatively high women‟s status and equity. The contention of this analysis is not that modernisation should be abandoned but only that a new system cannot be imposed on an old one without looking at the principles on which the latter is built.
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