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This territory was not under any formal system of governance until 1914 when the government of
India, foreign and political department notification was issued. Before 1914, customs and
traditions were the prime law of the land. Customary practices and traditions were the guiding
features of many enactments made by the British.
 

 

Some landmark enactments made by the British in the olden times were the
Bengal Eastern Frontier Regulation 1873, the Assam Forest Regulation 1891, the Chin Hills
Regulation 1896, and the Assam Frontier (Administration of Justice) Regulation 1945 etc.
Protection of the cultural and bio-geographical diversity and customs were the ruling
jurisprudence of these landmark enactments. The Constitution of India under Article 13 later
applied its seal on the customary laws granting them the status of a branch of constitutional law.


  

Ancient custom is generally regarded as providing a foundation for
many laws in most systems of jurisprudence and for reasons grounded in principle and justice.
A custom is a usage by virtue of which a class of persons belonging to a defined section in a
locality is entitled to exercise specific rights against certain other persons in the same locality.
There can be usage without custom, but no custom without usage.
Custom, if the law is to uphold it as right, should be immemorial in origin, certain, reasonable in
nature and continuous in use. When a customary right is upheld by the court it becomes
customary law. These customary laws were the creation of Indian courts.

 


  
  
Customary rights by definition cannot be the creature of a
written instrument. Neither was the principles of customary laws codified nor were the said
customs listed out separately by legislation in India. However, customary rights were recognized
as early as 1872, when the Indian Evidence Act was enacted. Indian Evidence Act (Section 13)
deals with the facts relevant for the proof of customary law. Likewise Section 10 to 16 of the
Assam Forest Regulation 1891 recognizes rights to pasture and forest produce at the stage of
settling rights before a given area of forest is classified as Reserve Forest. These rights are, no
doubt, customary rights.
But these rights were seldom transformed into customary rights in the field. The reasons were
twofold. Either the forest dependent communities were ignorant about their rights or the
settlement officers, with their narrow and rigid pro-establishment mindset, were not inclined to
grant such rights to the people. However, it should be admitted that the early colonial legislation
enacted over a century ago did recognize customary rights, though such legislation were very
few.



 
Policies of economic liberalization and massive planned development have
applied great pressure on the customary laws of the people. A situation has arisen when one can
easily see a conflict between customary rights and modern laws enacted by the Parliament and in
various decisions of the Supreme Court of India.
The Supreme Court of India has defined the term µforest¶ in the Forest Conservation Case (T.N.
Godavarman v Union of India). The term forest has to be understood in its dictionary meaning
and is irrespective of classification and ownership.
1
In other words, section 2 of the Forest (Conservation) Act. 1980 will be breached upon in case an
inch of the 82 per cent area of the state is diverted for non forestry purpose. This has made great
impact on not only the customary rights of the people as well as on their livelihood. The conflict
between customary rights/customary law and statute law has to be addressed and resolved.
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Votaries of codification of customary laws have little idea about the
consequences of any such codification. Custom and tradition of a tribal formation is always
evolving and at times old customs are phased out due to the impact of modernity and change in
lifestyle. Codification of customs, customary rights, and customary law can therefore be never
exhaustive and it would also amount to stopping growth of customs and customary rights of
future generations. In addition to these courts may also arrive at different interpretations of the
customary rights, once they are codified, by following strict rules of construction or functional
interpretation. Votaries of codification should also remember that law and justice are often not on
talking terms.
Further, the attempt to codify the customary rights will only aggravate the problem as many of
the customs may fail to graduate to customary laws as they may be against the public policy or
judiciary may not recognize them due to contrary orders passed by the Apex Court in similar
situations.
 




 

  
The Convention on Biological Diversity (CBD) brought
conservation of biodiversity to global centre stage. The Convention ordains that nations should
respect, preserve and maintain knowledge, innovations and practices of local communities
relevant for conservation and sustainable use of biodiversity. The Rio Declaration, Agenda 21,
and Forestry Principle also encourage the promotion of customary practices conducive to
conservation. Likewise international declaration on human rights enjoins upon the governments
to grant basic human rights to people.
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Firstly, how do we make the legal system work better for indigenous peoples
and how do we incorporate indigenous legal systems into the mainstream legal process without
violating the universality of human rights? In other words, how do we recognize customary law
in a manner that is non-discriminatory?
And secondly, provided that we can recognize indigenous legal systems in a manner that is non-
discriminatory, how do we guarantee individual human rights within indigenous communities,
particularly for women and children? What about animal rights and prevention of cruelty to
them? These are also the issues around which the international and domestic implications of
customary law converge. These issues are required to be debated and probed seriously by the
young lawyers. This will help in upholding the province of customary law in this state.
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