Customary laws are locally recognised principles, norms, and rules that are orally transmitted and upheld by community institutions to govern various aspects of life. In India, these customary laws refer to a body of unwritten rules and practices that have evolved over time within specific communities or societies and gained legal recognition due to their long-standing acceptance. According to Article 13(3)(a) of the Indian Constitution, the term “law” includes “customs” and “usages” that have legal effect. A reasonable and definite ancient custom, like legislative acts, is binding upon the courts.
Garo customary law, deeply embedded in the traditions and social structures of the Garo people in North-East India, has historically governed various aspects of life, including family matters, property inheritance, and community disputes. These customs, transmitted through generations, reflect the values and norms of the Garo tribe. However, as India modernises and statutory laws become more pervasive, the relevance and application of these customary laws, especially those conflicting with modern principles of justice and equity, are increasingly scrutinised.
Part X of the Indian Constitution, under the Sixth Schedule, empowers autonomous districts and regions to legislate on matters such as forest management, village or town administration (including local police), appointment and succession of headmen, inheritance of property, marriage and divorce, and social customs. The Sixth Schedule also permits the administration of justice within autonomous districts and regions by enabling the formation of village councils and courts under the jurisdiction of the respective High Courts. Additionally, the Sixth Schedule states that the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898, shall not apply to the trial of any suits, cases, and offences within autonomous districts and regions. Based on these provisions, the customary laws of the Garo community continue to be practiced.
Garo customary law encompasses both civil and criminal aspects. In the matrilineal Garo society, family property is inherited by women. These inheritance laws are valid and recognised by the courts. Dr. Julius R. Marak, in his book “Garo Customary Laws, Traditions, and Practices” documents various criminal aspects laws, including:
(a) Uncles, elder brothers, or sisters of the same ma.chong (motherhood) may beat their nephews, nieces, younger brothers, and sisters to correct their behaviour. Even if the person beaten dies, customary law permits such actions without imposing punishment (p. 174).
(b) Customary law allows the killing of any person for good cause without punishment for the offender (p. 179).
(c) If a Nokma (chief) encroaches on another’s A.king (clan land), the clan’s challang (warrior) is permitted to behead the encroacher. Such murders were allowed by customary laws (p. 182).
A recent incident which was going viral on social media where a woman from Teksagre, Garo Hills was flogged by her clan members as a disciplinary measure has generated a division among netizens, with some defending the actions of the clan as consistent with customary law, while others criticized them as outdated and harsh. This incident has prompted a discussion on the legitimacy and acceptability of using physical force against women by male relatives within the framework of customary laws.
The question arises whether such customary laws those where practised in the early days such as murder in certain cases within the framework of customary law and use of physical force on woman as disciplinary measures are still applicable in modern Indian society when there is a Constitution of India as the supreme land of the law that protects every Indian citizen from violation of fundamental rights and several Indian statutory laws such as Indian Penal Code (IPC) 1908 or new criminal law Bharatiya Nyaya Sanhita (BNS), 2023 and the Protection of Women from Domestic Violence (PWDV) Act, 2005 which safeguards women’s life and dignity?
To address these questions, it is crucial to understand the legal recognition of customary laws in India. Custom laws are binding upon the courts; however, not all customary laws are legally enforceable. To gain legal recognition, customary laws must pass various tests, such as those of immemorial antiquity, reasonableness, and morality. A customary law must be ancient and not of recent origin. It should be reasonable, useful, and convenient for society, and it must not be immoral. A custom should not be opposed to decency, morality, public justice, equity, or good conscience.
Customary laws must align with existing statutory laws such as IPC, BNS, PWDV Act,2005 etc. to be considered valid. For instance, in the case of Balusami v. Bala Krishnan, the custom permitting marriage with a daughter’s daughter was held immoral by the court. Indian courts have consistently held that statutory laws prevail over customs and practices that contradict legislative mandates. In the case of State of Bombay vs. NarasuAppa Mali (AIR 1952, BOM 84), the Bombay High Court ruled that a custom inconsistent with a statutory law is void.
India is governed by various statutory laws which apply in Scheduled Areas. Customary laws permitting acts such as murders on certain cases or using physical force on a woman that demean the dignity of woman conflict with the provisions of IPC Section 319,300,354, BNS Section 74,101 and the PWDV Act, 2005. When customary laws conflict with statutory laws or violate the fundamental rights enshrined in the Constitution such customs cannot be held valid even if practiced according to traditional laws. Customary law to be legally enforceable must not to oppose decency and morality and must align with existing statutory laws.
The judiciary actively scrutinises customary laws for their constitutionality and consistency with statutory provisions. Courts have the authority to invalidate customs that conflict with statutory law or violate constitutional rights. Any customary laws or practices that permit actions contrary to statutory protections cannot be constitutionally valid. The Sixth Schedule autonomy does not exempt these regions from adhering to fundamental human rights principles and statutory laws. Practices such as using physical force on women as a disciplinary measure, though accepted under customary law, cannot stand against IPC, BNS, or the PWDV Act, 2005.
While it is crucial to respect and preserve cultural practices, the reconciliation of customary and statutory laws must prioritise fundamental human rights. Customary laws that contravene constitutional principles and statutory protections, especially those harming vulnerable groups like women and children, need reform and should not be practiced. As expressed under Article 19(1)(a) of the Indian Constitution, these views are my personal opinions, exercising my constitutional right to freedom of speech and expression. There is no intention to criticise any particular group or person but merely to express my views within my constitutional rights.
