1. Heard Mr. S. Dutta, learned senior counsel assisted by Mr. B. Devnath, Ms. Priyanka, Advocates. Also heard Mr. R. Iralu, learned senior counsel assisted by Mr. L. Iralu, learned counsel for respondent Nos. 4 and 5 and Mr. K. Wotsa, learned Sr. Government Advocate for the State.
2. In this petition, the petitioner is challenging certain orders passed by the respondent Nos. 4 and 5 alleged to be acting in the capacity of the Village Council, by which the petitioner has been banished and excommunicated from his own village for 11 years with other restrictions placed on him; and some other villagers have been also penalized by imposing fines and banishment for supporting the petitioner.
3. Only a few facts as may be relevant may be stated herein.
4. The petitioner hails from Mejongenshi Aso clan of Chuchuyimlang village of Mokokchung District, Nagaland and a permanent resident of the said village. In the last State Assembly election held in 2018, the petitioner intended to contest the election. However, as per the decision of the executive committee of Chuchuyimlang Senso Mungdang or Chuchuyimlang Citizens Forum (Respondent no.5), another person namely, Shri Nuklutoshi Longkumer was selected to be the sole candidate from the village to contest the State Assembly election under the banner of Nagaland Peoples Front (NPF) from 22 Arkakong Assembly Constituency. As per the decision of the Village Council only the person nominated by the Village Council could contest the election. The petitioner was not selected by the Village Council for contesting the assembly.
5. According to the petitioner, the aforesaid decision of the Chuchuyimlang Citizens Forum was illegal as they had no such authority to select a candidate to the exclusion of the petitioner or any other person, in as much as contesting an election is not only a legal right but also a constitutional right of any citizen of this country, so long as he fulfils the criteria and requirements under the Constitution and laws framed there- under. Accordingly, in defiance of the decision of the Village Council, the petitioner opted to contest the last Nagaland Legislative Assembly election from 22 Arkakong Assembly Constituency as a candidate of the Nationalist Democratic Progressive Party (NDPP). Though the petitioner was unsuccessful in the said election, the petitioner has been subjected to various injunctions and penalties for alleged defiance of the decision of the Village Council as mentioned above by the respondent Nos. 4 and 5, who according to the petitioner, were discharging the role of Village Council.
6. By the impugned order dated 5/3/2018 (Annexure 3) challenged in this petition, the petitioner has been barred from taking part in any social set up under Chuchuyimlang Citizens Forum, the Respondent no.5, and it was further notified that no recommendation will be provided to him for 11 (eleven) years beginning from 1/1/2018 to 31/1/2030 on the ground that he had breached the earlier resolution of the Chuchuyimlang Citizens Forum that he would abide by the decision of the Forum and accordingly, the petitioner has been banned from entering the village area for 11 years. It was further notified that there will be social boycott of the petitioner and no individual would be permitted to entertain the petitioner as one of the citizens of Chuchuyimlang village with the warning that the Chuchuyimlang Citizens Forum (Respondent No.5) and the Riosanger Putu Menden will not be responsible for any untoward incident that may happen if any person/group entertains him.
The aforesaid impugned Notification dated 5.3.2018 as recorded in paragraph no.10 of the petition is reproduced as follows:
"Since Mr. Meyimangyang (alias Mangyang Lima), Son of Late Limakumzuk has breached the solemn resolution of the Chuchuyimlang Senso Mungdang {(CSM)/ Chuchuyimlang Citizens Forum} made in the name of God to live in unity and dignity, the CSM and the Riongsanger Putu Menden of Chuchuyimlang has resolved as follows:
1. Since Mr. Meyimangyang has given several hardships to the citizens of Chuchuyimlang village during his breach of CSM resolution, the breached the CSM resolution, he will not be allowed to take part in any social set-up under CSM and no recommendations will be provided to him for eleven (11) years beginning from 01 February 2018 to 31 January 2030.
2. Since Mr. Meyimangyang has given several hardships to the citizens of Chuchuyimlang village during his breach of CSM resolution, the Riongsanger Putu Menden has resolved not to allow him to enter into Chuchuyimlang area for eleven (11) years.
3. During these eleven (11) years of social boycott, no one or group is permitted to entertain him as one of the citizens of Chuchuyimlang. The CSM and the Riongsanger Putu Menden will not be held responsible if any untoward incident happens to him while any person or group entertains him in his individual capacity."
7. The petitioner has also challenged another decision of the Chuchuyimlang Senso Mungdang (Respondent no.5) and the Riosanger Putu Menden by which a number of Tatars (Village Council Members) who were supporters of the petitioner were imposed the fine in the form pigs and also imposed a fine of Rs. 33,490/- as the cost of the pigs which they refused to give by way of penalty and accordingly were threatened to be expelled from the Village who refused to partake the pigs as indicated in the letter dated 12.3.2018 (Annexure 7) issued by the Respondent no.4 as well the letter dated and 22.3.2018 (Annexure 11) issued by the Secretary of the Respondent no. 4.
8. Learned senior counsel for the petitioner has submitted that the aforesaid impugned orders are illegal in as much as the same are unconstitutional. It has been submitted that respondent Nos.4 & 5 who were acting under the capacity of Village Council being public authorities, are under obligation to abide by the law and Constitution. Merely because the petitioner had opted to exercise his legal and constitutional right of contesting the Assembly Election, he and his supporters could not have been subjected to aforesaid penalties and other forms of restrictions which are not permissible under the law. It is also submitted that by the aforesaid penalty of banishment, his fundamental right to move freely throughout the territory of India as granted under Article 19(1)(d) as well as his right to reside in any part of the country as guaranteed under Article 19(1)(e) of the Constitution has been violated. Further, banishing and ex-communicating the petitioner for 11 years from his own village means depriving his personal liberty which is guaranteed under Article 21 of the Constitution of India. Thus, the acts of the respondent Nos. 4 and 5 are illegal and are liable to be interfered with.
It has been also submitted on behalf of the petitioner that the aforesaid Respondent Nos. 4 and 5 represent the Village Council established under the Nagaland Village and Area Councils Act, 1978, hereinafter referred to as the "Act", which has been endowed with certain statutory duties and functions and as such, it is incumbent upon members of these bodies to discharge their duties and functions in accordance with the aforesaid Act and certainly not contrary to the legal and constitutional provisions.
9. This petition has been resolutely contested by the Respondent Nos. 4 and 5.
10 Learned senior counsel for the Respondent Nos. 4 and 5 has contended that this petition is not maintainable at all, in as much as no writ would lie against private entities. He submits that the Respondent nos. 4 and 5 are private entities and not Government or statutory bodies. He submits that it is now well settled that a writ under Article 226 of the Constitution would lie only against the State or any local authority or agency and certainly not against a private entity. It has been contended that the petitioner mistakenly considered the Respondent Nos. 4 and 5 to be Village Council. This assumption on the part of the petitioner that the Respondent Nos. 4 and 5 represent the Village Council is not at all supported by evidence. In fact, the respondent Nos. 4 and 5 are mere village bodies which have been given authority to preserve the customary laws. On the other hand, the Village Council constituted under the Nagaland Village and Area Councils Act, 1978 has been endowed with certain statutory functions as mentioned under Section 12 of thewhich includes formulating village development schemes, supervising proper maintenance of water supply, roads, power, forest, education and other welfare activities, helping Government agencies in carrying out development works. In other words, the Village Council acts as an auxiliary body to the principal Government agencies functioning in the village and district level. The Village Councils have been created to aid and assist the executive arm of the State. On the other hand, the respondent Nos. 4 and 5 are purely social entities whose primary duty is to preserve and protect customary law and do not discharge any statutory function as contemplated under section 12 of the. Ld. Senior Counsel for the Respondent nos. 4 and 5 accordingly submits that it is this confusion of the petitioner of the role of respondent Nos. 4 and 5 with that of the statutory body, Village Council, constituted under the 1978 Act which has led to filing of this petition.
Accordingly, it has been submitted that since the respondent Nos. 4 and 5 are not authorities within the meaning of Article 12 of the Constitution of India, this writ petition is not maintainable. Learned senior counsel submits that the respondent Nos. 4 and 5 are private entities and hence not amenable to writ jurisdiction, more so when what are being challenged in this petition are not in the domain of public law but within private law. In support of his contention, he has relied on the decision of the Honble Supreme Court in the case of K.K. Saksena vs. International Commission on Irrigation and Drainage and others, (2015) 4SCC 670, wherein it was held as follows:
"43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is "State" within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is "State" under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law.
11. Learned senior counsel for the Respondent nos. 4 and 5 submits that the Respondents have clearly explained the legal position and status of the Respondent Nos. 4 and 5 as private entities in their affidavit in opposition, which has been confused by the petitioner as Village Council. In the said affidavit filed by the Respondent nos.4 and 5, the structure and the social set up under which the respondent Nos. 4 and 5 discharge their functions have been explained. Even though, the petitioner himself has described Respondent Nos. 4 and 5 to be representing the Village Council, there is no such description by the respondents themselves as being Village Council. It has been submitted that since the averments made by the Respondent Nos. 4 and 5 in their affidavit-in-opposition have not been controverted and denied by the petitioner by filing any reply or rejoinder affidavit in that regard, the averments made in the affidavit in opposition shall be presumed to have been admitted to be correct by the petitioner. Learned senior counsel also submits that even the official respondents are also confused as they do not properly understand the social structure of the village in this area of the State. However, there cannot be any confusion about the identities of the Respondent nos.4 and 5 by the petitioner, he being a local person. On the other hand, Ld. Senior Counsel for the petitioner submits that the Deputy Commissioner of the District had clearly held that the impugned orders were issued by the Village Council and hence to describe the Respondent Nos. 4 and 5 as the Village Council is valid and accordingly, they are amenable to writ jurisdiction.
12. It has been submitted by the learned senior counsel for the Respondent Nos. 4 and 5 that it is also not correct on the part of the petitioner to allege that he had been subjected to any form of penalty for contesting the election. It has been clarified that the petitioner was penalized only for the reason that he went back from his own commitment made with the Chuchuyimlang Senso Mungdang which merely laid certain guidelines for participation in the State Assembly election 2018, and not for contesting in the election. In other words, he was penalized for reneging from his commitment made with the village to abide by the decision of the Chuchuyimlang Senso Mungdang in connection with the State Assembly election.
13. Further, it has been submitted that Respondent Nos. 4 and 5 have a responsibility towards the village to maintain peace and harmony in the village for which the respondents have been acting as guardian of the village as far as customary laws are concerned. It is violation of his own commitment to abide by the customary law for which the petitioner has been taken to task.
14. The other ground raised about non maintainability of the writ petition is that the petitioner has alternative remedies available before him. It has been contended that if the petitioner is really aggrieved by the penalties imposed by the Respondent Nos. 4 and 5, the petitioner could have approached any other forum available either with the Government authorities or competent Court which he has chosen not to, and instead has approached this Court directly under Article 226 of the Constitution.
15. It is also submitted that if the petitioner claims that such penalties or orders issued by the respondent Nos. 4 and 5 are illegal and if it is also the allegation of the petitioner that such impugned decisions of the respondent Nos. 4 and 5 are to enforce certain illegal agreement, the fact remains that the petitioner also has not opted to challenge the so called illegal or void agreement. Though the petitioner has claimed that he has been subjected to penalties for disobeying certain illegal agreement, he has never questioned the said illegal or void agreement. It has been submitted that he cannot do so also, as he himself was a party to the so called void or illegal agreement.
In this regard the learned senior counsel for the Respondent nos. 4 and 5 has referred to the following decisions of the Honble Supreme Court:
(1) Mannalal Khetan and others vs Kedar Nath Khetan and others, (1977) 2 SCC 424 , wherein it was held that Court cannot enforce an illegal contract.
"19. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court will lend its assistance to give it effect. (See Mellis v. Shirley L.B., (1885) 16 QBD 446) A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition. The penalty may be imposed with intent merely to deter persons from entering into the contract or for the purposes of revenue or that the contract shall not be entered into so as to be valid at law. A distinction is sometimes made between contracts entered into with the object of committing an illegal act and contracts expressly or impliedly prohibited by statute. The distinction is that in the former class one has only to look and see what acts the statute prohibits; it does not matter whether or not it prohibits a contract: if a contract is made to do a prohibited act, that contract will be unenforceable. In the latter class, one has to consider not what act the statute prohibits, but what contracts it prohibits. One is not concerned at all with the intent of the parties, if the parties enter into a prohibited contract, that contract is unenforceable. (See St. John Shipping Corporation v. Joseph Rank, (1957) QB 267.) (See also Halsburys Laws of England, 3rd Edn., Vol. 8, p. 141.)
20. It is well established that a contract which involves in its fulfilment the doing of an act prohibited by statute is void. The legal maxim A pactis privatorum publico juri non derogatur means that private agreements cannot alter the general law. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. (See Mellis v. Shirley L.B.) What is done in contravention of the provisions of an Act of the legislature cannot be made the subject of an action.
(2) Nutan Kumar and others vs IInd Additional District Judge, Banda and others, AIR 1994 Allahabad 298, in which it was held that an agreement offending statute or public policy forbidden by law is void and neither parties can enforce the said agreement.
16. Ld. Senior counsel for the Respondent Nos. 4 and 5 has further submitted that the petitioner himself had filed a complaint before the authorities on the basis of which an FIR has been lodged and investigation is going on and as such, he can await the result of the FIR and approach the authorities accordingly, on the basis of the outcome of the said investigation. Since a criminal investigation is still going on, the respondent Nos. 4 and 5 cannot be charged for committing any offence.
Accordingly, it has been submitted that this Court is not the proper forum to challenge the aforesaid decisions taken by the Respondent Nos. 4 and 5, with which the petitioner is aggrieved of.
17. Before proceeding with the matter, this Court would like to place on record the submission made by the Ld. Sr. Government for the State that he is not making any submission in this case. Accordingly, the Court has proceeded without having any opinion of the State Government on this contentious issue.
18. This Court would like to first deal with the objection raised by the Respondent nos. 4 and 5 that the petition is not maintainable. As can be seen from above, three specific grounds have been taken.
Firstly, that the Respondent nos. 4 and 5 being private entities are not amenable to writ jurisdiction.
Secondly, since there are alternative remedies available, this writ petition ought not be entertained.
It has been also contended that apart from the fact that the petitioner can approach the Government or the civil court for redress, the petitioner had already filed a complaint before the police and an FIR has been registered, which is pending investigation. Hence, it is premature to file this petition.
Thirdly, this Court cannot enforce an illegal agreement, as according to the petitioner the agreement which he entered with the Respondent nos. 4 and 5 was illegal.
19. To deal with the first objection, we may refer to the functions of the Respondent nos. 4 and 5 as stated by themselves in their affidavit in opposition.
In the affidavit in opposition filed by the Respondent nos. 4 and 5, it has been stated that the Respondent no.4, Chuchuyimlang Village Council or Riongsanger Putu Tatar Salang is an Ao Naga Village customary institution belonging to Chuchuyimlang village of Mokungchung District of Nagaland State. It is also known as Putu Menden in general. The Respondents however, clarify that this institution is not the Chuchuyimlang Village Council for the reason that when it functions under the nomenclature of Riongsanger Putu Tatar Salang it does not have Gaonburas as members and does not have any responsibilities towards the Government. However, when Riongsanger Putu Tatar Salang functions with some Tatars (members of Putu Meden) and all the Gaonburas as members, it is called Chuchuyimlang Village Council without using the nomenclature Riongsanger Putu Tatar Salang and owes responsibilities to the Government. In other words, this village body, when associated with Tatars and Gaonburas functions as the Village Council and becomes a State institution. Otherwise, when it functions bereft of them, it remains a mere village body.
20.The Respondent nos. 4 and 5 then continue to explain the composition of Putu Menden with an intricately woven hierarchical structure involving villagers of different age groups and generations having different responsibilities and duties.
It is stated that Riongsanger Putu Tatar Salang is however, totally different from the Village Council, whose functions and duties have been enumerated under Sections 12 and 15 of the. Section 12 deals with the developmental activities relating to the Village and Section 15 deals with maintenance of law and order and related matters. Thus, while the Village Councils functions pertain to governmental activities, Riongsanger Putu Tatar Salang, even if has members who are also members of the Village Council, has nothing to do with these governmental activities, but primarily concerned with maintaining and preserving the customary practices of the village passed down from generation to generation and to implement these practices in the day to day social affairs and management of the village.
Some of the functions of Rionsangaer Putu Tatar Salang have been described in the affidavit in opposition of the Respondent nos. 4 and 5 which are reproduced herein below:
"i. It engages in the traditional practice of renovating, augmenting and enhancing the forest paths and farming paths which involve the voluntary participation of its citizens.
ii. For any other community work including the one above stated, the Riongsanger Putu Tatar Salang entrust the Lanu Menden to implement its decision, which is a voluntary public bench where any citizen can join or exit voluntarily at any time. The Lanu Menden also plays vital role during community hunting and fishing.
iii. It decides the yearly sit for jhum cultivation on the village and all interested farmers are allowed to cultivate only in the selected site.
iv. It also acts in establishing correspondence with neighbouring villages, especially with villages of neighbouring tribes like Phom, Chang and Sangtam in accordance with the customary practices through the Lenpur. The Lenpurs are the messenger or ambassador to other villages of neighbouring tribes with whom he Chuchuyimlang village has traditional bonding, which is called Akang-jungshi.
v. The Riongsanger Putu Tatar Salang implements customary laws of the village when there are disputes of minor nature between villagers, and also for securing peaceful and harmonious co-existence amongst its citizens. The body of laws is called Yimten Temzung.
The customary law in Yimtem Temzung also empowers the Tatars to suitably punish any person or group in any way deemed fit if the person or group commits an act which is impermissible under the customs and traditions of Chuchuyimlang village. Such a punishment can be to the extent of expatriating the person of group from the village jurisdiction for a specific term or even in permanence. If any criminal/wrongdoer/offender refuses or objects to the final decision of the Putu Menden in awarding punishment, he or she is given additional punishment such as locking of the wrongdoers house, which act is called Ki-shitsu. In severe cases, the Ak-tsung is enforced on the wrongdoer; this involves killing a pig at the cost of the villages account and distributing its meat (in small pieces) to all the households as a sign and symbol of social boycott. During the enforcement of Ak-tsung, no person is allowed to have any contact with the wrongdoer/offender and he/she is deserted by the whole villagers even during the times of misfortune like death in the family. If any citizen violates Ak-tsung by visiting or favouring the wrongdoer /offender, it is a traditional belief that the whole curse is borne by that person and unprecedented misfortune happens to him, which incident is called Amok-ji-sem.
These customary practices codified in the Yimten Temzung are not against any public policy and are protected by the Constitution of India by virtue of Article 371A."
21. The Respondent nos. 4 and 5 also state that Chuchuyimlang Senso Mundang (CSM) (Respondent no.5) or the Chuchuyimlang Citizens Forum, is the apex body of the Chuchuyimlang citizens. It has seven units called Chuchuyimlang Citizens Union (CCU) spread over seven regions in Chuchu Town, Dimapur, Kohima, Makokchung, Mon, Tuli (Makokchung) and Tzudikong (Makokching). Though CSM is the apex body, it does not have executive power and the real executive power lies with Putu Menden which is not the Village Council constituted under the Nagaland Village and Tribal Councils Act, 1978. However, it has been stated that the CSM can make resolutions for the welfare and unity of all the citizens, but the executing agency is the Putu Menden.
22. From the above, what transpires is that, even if the Respondent nos.4 and 5 are considered not to be Village Council or part of it, as envisaged under Section 3 of the Nagaland Village and Area Councils Act, 1978 as contended by the Respondent nos. 4 and 5, these nevertheless exercise extensive control over the social lives of the villagers to the extent that the Riongsangar Putu Tatar Salang can penalize a person or a group of persons, if their acts are impermissible under the customs and traditions of Chuchuyimlang village by banishment from the village jurisdictions for a specific period and even permanently. Various other forms of punishment are prescribed as mentioned above, which includes locking of the wrongdoers house, killing of pig and distributing its meat to the villagers. These customary practices are also codified in Yimten Temzung. Thus these bodies, even if they are not creatures of statutes under the Nagaland Village and Area Councils Act, 1978 or any other statute, as clarified by the Respondent nos. 4 and 5, are endowed with the authority not only to regulate the social lives of the villagers according to the customary laws but also to penalize the villagers to enforce the customary laws, which power and authority are not endowed to any other body in the village/society. Thus apart from the regulatory power relating to customary practices and laws, it has a monopolistic power over the villagers in this aspect. From the pleading of the Respondent nos. 4 and 5, it is clear that these otherwise private entities have pervasive control over the social life of the villagers with punitive and monopolistic regulatory power over the villagers. These bodies even if not government bodies, discharge duties which are public in nature. It is not confined to only a few individuals, but their writ runs over the entire village, who are subject to their decisions who may disobey on the pain of punishment and penalties. The writ of the Respondent nos. 4 and 5 runs within the entire society and thus is within the domain of public law, especially when it involves punishment like banishment and ex-communication.
In such a situation, this Court is of the view that the principle of law laid down in Board of Control for Cricket in India v. Cricket Association of Bihar, (2015) 3 SCC 251 would be attracted, thus opening the door of the High Court under Article 226 of the Constitution to those who may be aggrieved by any decision of such bodies, even if it is deemed that these bodies are not "State" or any "authority" within the meaning of Article 12 of the Constitution. In the said case, it was held as follows:
"32. Having said that this Court recognised the fact that the Board was discharging some duties like the selection of Indian Cricket Team, controlling the activities of the players which activities were akin to public duties or State functions so that if there is any breach of a constitutional or statutory obligation or the rights of other citizens, the aggrieved party shall be entitled to seek redress under the ordinary law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.
This Court observed: (Zee Telefilms Ltd. case, (2005) 4 SCC 649 SCC p. 682, para 31)
"31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32."
(emphasis supplied)
33. The majority view thus favours the view that BCCI is amenable to the writ jurisdiction of the High Court under Article 226 even when it is not "State" within the meaning of Article 12. The rationale underlying that view if we may say with utmost respect lies in the "nature of duties and functions" which BCCI performs. It is common ground that the respondent Board has a complete sway over the game of cricket in this country. It regulates and controls the game to the exclusion of all others. It formulates rules, regulations, norms and standards covering all aspects of the game. It enjoys the power of choosing the members of the national team and the umpires. It exercises the power of disqualifying players which may at times put an end to the sporting career of a person. It spends crores of rupees on building and maintaining infrastructure like stadia, running of cricket academies and supporting State associations. It frames pension schemes and incurs expenditure on coaches, trainers, etc. It sells broadcast and telecast rights and collects admission fee to venues where the matches are played. All these activities are undertaken with the tacit concurrence of the State Government and the Government of India who are not only fully aware but supportive of the activities of the Board. The State has not chosen to bring any law or taken any other step that would either deprive or dilute the Boards monopoly in the field of cricket. On the contrary, the Government of India has allowed the Board to select the national team which is then recognised by all concerned and applauded by the entire nation including at times by the highest of the dignitaries when they win tournaments and bring laurels home. Those distinguishing themselves in the international arena are conferred highest civilian awards like the Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri apart from sporting awards instituted by the Government. Such is the passion for this game in this country that cricketers are seen as icons by youngsters, middle aged and the old alike. Any organisation or entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity.
34. The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act. Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law take over or regulate but even lends its assistance to such a non-government body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action.
35. Our answer to Question (i), therefore, is in the negative, qua, the first part and affirmative qua the second. BCCI may not be "State" under Article 12 of the Constitution but is certainly amenable to writ jurisdiction under Article 226 of the Constitution of India.
23. Following the aforesaid principle, this Court would hold that even if the Respondent nos. 4 and 5 are not government or statutory authorities as claimed by the Respondent nos. 4 and 5, because of their pervasive and monopolistic control over the villagers with regulatory power under the Chuchuyimlang areas and discharge of public functions and duties, these bodies are amenable to writ jurisdiction.
24. It may be also noted that the Respondent nos.4 and 5 are not correct in making the submission that the Village Council constituted under the does not have adjudicatory role and it is merely an auxiliary body to the Government. It is provided under Section 14 under the heading "Administration of Justice" of the Nagaland Village and Area Councils Act, 1978 that the Village Council shall administer justice within the Village limits in accordance with the customary law and usages as accepted by the canons of justice established in Nagaland and the law in this respect as enforced from time to time.
Section 14 of thereads as follows:
"Administration of Justice
14. (1) The Village Council constituted under the law in force from time to time shall administer justice within the Village limits in accordance with the customary law and usages as accepted by the canons of justice established in Nagaland and the law in this respect as enforced from time to time.
(2) In case of disputes between villages falling in different areas or districts, two or more Village Councils may settle a dispute in a joint session or refer it to the appropriate authority."
25. Since the Village Council has been empowered to administer justice in the village in accordance with the customary law, either the Respondent Nos.4 and 5 in their local incarnation represent the Village Council exercising the aforesaid adjudicatory authority or are mere busy bodies, as there cannot be two entities exercising authority to administer justice on the basis of customary laws. If the Respondent nos. 4 and 5 represent the Village Council as contemplated under the, they are amenable to the writ jurisdiction. If they are not Village Council as claimed by them but since they claim to have the monopolistic right as regards implementation of customary laws in the village, for the reasons discussed above, they are amenable to writ jurisdiction. Otherwise, they are mere busy bodies who cannot issue such directives.
26. The Respondent Nos.4 and 5 have disclaimed that they represent the Village Council. However, it has been stated in para no. 2.2 of the affidavit in opposition that "The Respondent No.4, an Ao Naga Village customary institution belonging to Chuchuyimlang village of Makokchung district of Nagaland State, is specifically known by the name of Riongsanger Putu Tatar Salang or Putu Meden in general." The composition and hierarchy of Putu Meden has been explained in the subsequent para No. 2.3. This self acknowledgement by the Respondent no.4 that it is also known as Putu Meden perhaps settles the issue in favour of the petitioner that the Respondent no.4 is a statutory body amenable to writ jurisdiction, for it is clearly provided under second proviso to Rule 6 of the Nagaland and Village and Area Councils Act, 1978, that Village institutions which were traditionally established like the "Putu Menden" in Ao Area and recognised as Village Council shall continue to function as Village Council according to respective custom and usage.
Rule 6 reads as follows:
"6. (a) Every Village Council unless otherwise dissolved by the State Government, shall continue for five years from the date of appointment, provided that the said period may be extended by the State Government by a notification in the Gazette for a period not exceeding one year at a time,
(b) All members shall hold office during the life of the Village Council.
Provided that a member chosen to fill in a casual vacancy shall hold office for the remainder of the term of office of the member whom he replaced ;
Provided further that Village institutions which were traditionally established like the "Putu Menden" in Ao Area and recognised as Village Council shall continue to function as Village Council according to respective custom and usage."
(emphasis added)
Thus, Rule 6 of the Village Councils Act recognises "Putu Menden" in Ao area also as Village Council under the aforesaid Act. In view of the above provision, the Respondent Nos.4 and 5 cannot deny coverage under Article 226 of the Constitution.
27. This Court also has noted that though it was contended on behalf of the Respondent Nos.4 and 5 that there are alternative remedies available, it has not been specifically pointed out as to which are those remedies available. Further, merely because an FIR was lodged and investigation going on, it cannot preclude the petitioner from approaching this Court seeking the reliefs as claimed in this petition. The petitioner need not wait till the conclusion of the criminal proceedings, as the reliefs claimed in this writ proceeding can be granted independent of the criminal proceedings.
28. As regards the claim that the petitioner himself being a party to an illegal agreement, cannot enforce the same through this petiton, it may be noted that the petitioner is not approaching this Court seeking to enforce any such agreement. In fact, he has been accused by the Respondent nos. 4 and 5 of not abiding by such an agreement because of which the petitioner has been penalised. It is against this imposition of penalty that the petitioner has filed this petition.
29. For the reasons discussed above, this Court would hold that the present petition is maintainable and reject the objection of the Respondent Nos. 4 and 5.
30. This takes us to the more germane issued raised in this petition, as to whether the acts of the Respondent nos. 4 and 5 have violated the rights of the petitioner so as to warrant interference by this Court.
31. The petitioner claims that his legal and constitutional rights have been infringed by the acts of the Respondents Nos.4 and 5 who justify these acts on the ground that they are merely following and applying the customary laws which are not subject to the normal laws of the land and cannot be interfered by the Court of law.
Thus, the issue raised is also about the conflict between the customary laws and the statutory and constitutional laws of the land.
32. The inherent inconsistencies and conflict in the application of customary law and the democratic law in a modern society, governed by rule of law are bound to manifest from time to time. The inconsistencies are inherent for the reason that while customary laws are based on long held traditions which may even go back to centuries in the past and thus shaped by old values and hardened with the passage of time, the modern constitutional scheme is based on the concepts of liberty, equality and other democratic values which sometimes are at variance and opposed to the traditional values.
33. This petition involves one such problem which will be faced by the Courts occasionally when dealing with local issues where local customary laws are sought to be invoked in the backdrop of the constitutional rights and duties as ordained in the national Constitution.
34. As mentioned above, the petitioner in this petition has been subjected to ostracization and banishment from the village for 11 (eleven) years by a village body, respondents Nos. 4 and 5, by invoking customary laws apparently for having defied the collective decision of the village elders and representatives.
35. The Respondents responsible for issuing such dictates claim that these restraint orders have been issued in the interest of the welfare of the village, to maintain peace and tranquillity in the village on the basis of customary laws, which they are solely entitled to invoke.
They also contend that not only customary laws which have obtained the force of law are recognised and applicable in India, there is a specific Constitutional safeguard provided under Article 371A protecting Naga customary law and procedures. These impugned orders based on customary laws, however, seem to be in conflict with the fundamental rights of the petitioner as guaranteed under Articles 19(1)(d) & (e) and Article 21 of the Indian Constitution, because of which the petitioner has approached this Court invoking the writ jurisdiction under Article 226 of the Constitution challenging such orders issued by the village authority based on customary laws.
36. The problem arising out of application of customary laws under a modern written constitution is not unique to this country. It is being faced by other countries as well. However, wherever, there is conflict of the customary laws with the general constitutional law, generally, the same has been subject to the constitutional law, as an examination of the Constitutions of different would indicate.
37. However, before doing so, we may first examine the relevant law applicable in our Country.
38. Sir John Salmod, the noted Jurist defines "custom" as the one whose legal authority is absolute, one which in itself and propria vigore possesses the force of law, and custom can be a general custom or local custom.
It has been defined as "A particular rule which has existed from time immemorial and has obtained the force of law in a particular locality", in Subramanian Chettiar vs. Kumarappa Chettiar, AIR 1955 Mad 144 .
What are the essentials of a valid custom have been laid down in the case of Mahamaya Debi v. Haridas Haldar, 42 Cal 455 , in which it has been held that
a valid custom must be
1. ancient,
2. invariable and certain,
3. continuous,
4. peaceably and openly enjoyed, and
5. reasonable.
39. In this case, we may presume the existence of certain customary laws and practices amongst the inhabitants of Chuchuyimlang region to which the petitioner is also subjected to and as such this Court is not examining the whether the various attributes of a valid custom exist in the present case. However, in view of the objection raised by the petitioner that such customary practices and laws are opposed to his legal and fundamental rights and hence cannot be enforced, this Court would examine only that aspect of the customary law.
40. The petitioner has been subjected to ostracisation and banishment from his village for 11 years for certain reasons, which according to the petitioner is for having contested the State Assembly election contrary to the decision of the Respondent nos. 4 and 5 and which punishment, according to the Respondents no.4 and 5, was imposed to the petitioner for having defied the customary laws. As mentioned above, we are not examining as to what customary law had been violated by the petitioner. We assume that the petitioner had violated certain customary law. The issue before this Court is whether, for violation of any such customary law, could the petitioner be subjected to the penalty of banishment and ex-communication as has been done
41.It is now well settled that custom in order to be valid should not be opposed to morality, public policy, express enactments of legislature and must be strictly proved.
There is another constitutional mandate which requires that all laws which includes custom or usage having the force of law in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part III of the Constitution shall, to the extent of such inconsistency, be void. Article 13 of the Constitution provides that,
"13. Laws inconsistent with or in derogation of the fundamental rights:
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,
(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.
Thus, any custom, having the force of law, if found to be inconsistent with any of the provisions of Part III of the Constitution, shall to that extent be void.
42. The Supreme Court in N. Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106 held that any custom which is opposed to the law of the land cannot be upheld by the Court.
"18. .. Any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country." (emphasis added)
43. Similarly, it was held in State of Bihar v. Subodh Gopal Bose, (1968) 1 SCR 313 : AIR 1968 SC 281 that a custom to be valid must be reasonable and reasonableness is an essential attribute of Article 14 of the Constitution, part of Part III of the Constitution.
"18. .A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality. To the extent to which it is inconsistent with the general law, undoubtedly the custom prevails. But to be valid, a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly.
44. The Supreme Court in Shayara Bano v. Union of India, (2017) 9 SCC 1 held that if any law is manifestly arbitrary and unreasonable, it would offend Article 14 of the Constitution and in that, it would be void being violative of Article 14 of the Constitution. In the aforesaid case of Shyara Bano (Supra), the Supreme Court found that the practice of Triple Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. It was observed that this form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. The Supreme Court accordingly declared that the Muslim Personal Law (Shariat) Application Act, 1937 in so far as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it recognises and enforces Triple Talaq.
It was held that,
"101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 15 SCC 641 stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.
102. Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a form of talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of talaq. We have noticed how in Fyzees book, Tahir Mahmood (Ed.) Asaf Fyzee, Outlines of Muhamaddan Law, 5th Edn. 2008. the Hanafi School of Shariat law, which itself recognises this form of talaq, specifically states that though lawful it is sinful in that it incurs the wrath of God.
103.
104. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad, AIR 1932 PC 25 such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara, (2002) 7 SCC 518. This being the case, it is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognise and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it recognises and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.
45. It was however, held in Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461 that "Article 13(1) applies only to such pre-Constitution laws including customs which are inconsistent with the provisions of Part III of the Constitution and not to such religious customs and personal laws which are protected by the fundamental rights such as Articles 25 and 26. In other words, religious beliefs, customs and practices based upon religious faith and scriptures cannot be treated to be void. Religious freedoms protected by Articles 25 and 26 can be curtailed only by law made by a competent legislature to the permissible extent."
It is not the case of the Respondent nos. 4 and 5 that the customary laws and practices which they are seeking to enforce is part of their religious customs or practices so as to be saved by Article 25 and 26(b) of the Constitution.
46. Following the above principle, one can say that if the acts of the Respondent nos.4 and 5 based on customary laws and practices are found to be inconsistent with any of the Fundamental Rights as guaranteed under Part III of the Constitution, to that extent, would be unconstitutional and void.
47. This Court will now consider if any of the impugned acts is violative of any of the Fundamental Rights guaranteed under Part III of the Constitution of India.
The petitioner has been banished from the village for 11 years and excommunicated on the pain of punishment of those villagers who may socialize with him. Others who had supported the petitioner and did not conform to the directives of the Respondents no. 4 and 5 have been also expelled from the village and also fined. In other words, the petitioner has been subjected to ostracisation and some of his supporters have been denied the right to stay in their own village.
48. As contended by the petitioner and as also observed by this Court, the Fundamental Rights of the petitioner which may have been adversely affected by these impugned decision are, the right to move freely throughout the territory of India and right to reside and settle in any part of the territory of India as guaranteed under Articles 19(1)(d) and (e) as well as the personal liberties as guaranteed under Article 21 of the Constitution.
Though Article 21 which guarantees right to life and personal liberties and Article 19 which guarantees certain rights are considered to be independent rights, the Supreme Court has also observed that Article 21 is an overarching provision which will also take into account all those rights which have not been specifically mentioned under Article 19.
Article 19 reads as follows:
"19. Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions co-operative societies;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) * * *
(g) to practise any profession, or to carry on any occupation, trade or business.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(5) Nothing in sub-clauses (d) and (e)] of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe."
Article 21 reads as follows:
"21. Protection of life and personal liberty.No person shall be deprived of his life or personal liberty except according to procedure established by law."
49. Rights guaranteed under Article 19(1)(d) and (e) read with Article 21 endow a citizen with potent rights which merit robust safeguard and vigil of the Court.
Article 21 is one of the most important fundamental rights guaranteed under the Constitution. Bhagwati J. in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 , describes Article 21 to be embodying a constitutional value of supreme importance in a democratic society. Article 21 has received much attention of the Supreme Court with several landmark judgments woven around Article 21. In Kharak Singh (supra), the Supreme Court recalled the cherished ideals enshrined in the Preamble to "assure the dignity of the individual" to explain the vast scope of Article 21.
50. As guaranteed under Article 19(1)(d), the petitioner has the right to move freely throughout the territory of India, and also to reside and settle in any part of the territory of India as guaranteed under Articles 19(1)(e). However, there can be reasonable restrictions placed on these rights.
But, the reasonable restrictions can be placed by the State only through a valid law. This means that no other entity other than State or any authority within the meaning of Article 12 can place such restrictions. Further, if any such reasonable restriction is to be placed on these rights, it has to be only two grounds, namely, in the interest of the general public or for protection of the interest of Scheduled Tribe.
In the present case, restrictions on the aforesaid twin rights have been placed by the Respondent nos. 4 and 5, who according to themselves are not authorities within the meaning of Article 12 of the Constitution. Even otherwise also, the restrictions imposed on the petitioner are neither in the interests of the general public or for the protection of the interests of any Scheduled Tribe. As such this Court need not dwell on the reasonability of the restrictions placed. Though it has been claimed that the said punishments were imposed on the petitioner to uphold peace and tranquillity in the village, it is not clearly stated how banishment and excommunication of the petitioner would subserve public tranquillity in the village. The alleged offence committed by the petitioner was for contesting the election contrary to the decision of the Respondent nos. 4 and 5. How such an act has disturbed the peace and tranquillity in the village has not been spelt out. In any event, mere exercise of his constitutional right to contest election in the Assembly election, without any other allegations of any other misconduct, cannot be construed to be an act which would disturb the peace and tranquillity in the village. To contest an election and to mobilise his support and seek votes of the people are essential parts of the most important democratic process, which cannot be considered to be disturbing peace and tranquillity in the village, unless he commits any of the prohibited acts under the Representation of Peoples Act, 1951. Further, since all the contesting parties and the rest of the villagers are Scheduled Tribes, it has not been explained how the interest of the Scheduled Tribes would be protected by this act of banishment and ex-communication.
51. In N.B. Khare (Dr) v. State of Delhi, 1950 SCR 519 : AIR 1950 SC 211 : (1951) 52 Cri LJ 550, the Supreme Court was considering whether the order of externment issued against the petitioner therein directing him to remove himself from the Delhi District and not to return to the District by an order issued by the District Magistrate under the East Punjab Public Safety Act, 1949 was violative of Article 19(1)(d). The Supreme Court while holding that the order of externment abridged the right of freedom of movement through the territory of India, upheld the order of externment on the ground that the restrictions placed was not unreasonable and it had nexus with the object to prevent the petitioner from engaging in prejudicial activities affecting the law and order. We are not concerned with the issue as to whether the restrictions are reasonable or not, in the present case, for the reason that the restrictions imposed on the petitioner is not for preventing the petitioner from engaging in any prejudicial activity but for the purported reason of not complying with the directions of the Respondent nos. 4 and 5. We are presently concerned with the primary issue that the impugned orders have restricted the freedom of movement of the petitioner and not with secondary issue of reasonable ness of the restriction.
It was held in the aforesaid case of N.B.Khare (supra) that ,
"3. It is necessary first to ascertain the true meaning of Article 19(1)(d) read with clause (5) of the same article. There is no doubt that by the order of externment the right of the petitioner to freedom of movement throughout the territory of India is abridged. The only question is whether the limits of permissible legislation under clause (5) are exceeded. That clause provides as follows:
"19. (5) Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe."
4. It is clear that the clause permits imposition of reasonable restrictions on the exercise of the right conferred by sub-clause (d) in the interests of the general public."
(emphasis added)
52. The Supreme Court in Kharak Singh v. State of U.P., (1964) 1 SCR 332 : AIR 1963 SC 1295 while dealing with the scope of Article 19(1)(d) took a restrictive view by holding that it essentially means the right to move about physically or rather of locomotion. It was observed that,
13. We shall now proceed with the examination of the width, scope and content of the expression "personal liberty" in Article 21. Having regard to the terms of Article 19(1)(d), we must take it that that expression is used as not to include the right to move about or rather of locomotion. The right to move about being excluded its narrowest interpretation would be that it comprehends nothing more than freedom from physical restraint or freedom from confinement within the bounds of a prison; in other words, freedom from arrest and detention, from false imprisonment or wrongful confinement. We feel unable to hold that the term was intended to bear only this narrow interpretation but on the other hand consider that "personal liberty" is used in the Article as a compendious term to include within itself all the varieties of rights which go to make up the "personal liberties" of man other than those dealt with in the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, "personal liberty" in Article 21 takes in and comprises the residue. We have already extracted a passage from the judgment of Field, J. in Munn v. Illinois2 where the learned Judge pointed out that "life" in the 5th and 14th Amendments of the U.S. Constitution corresponding to Article 21, means not merely the right to the continuance of a persons animal existence, but a right to the possession of each of his organs his arms and legs etc.."
53. Even going by the restrictive meaning given to Article 19(1)(d) by the Supreme Court in Kharak Singh (supra) as the right to move about physically or rather of locomotion, the fact that the petitioner has been prevented from moving around in his own village certainly amounts to impingement of his right guaranteed under Article 19(1)(d).
54. It may be mentioned that with the latest view of the Supreme Court in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 holding that right to privacy is a fundamental right and part of Article 21, in the opinion of this Court, the restricted view expressed in Kharak Singh (supra) about the freedom of movement as guaranteed under Article 19(1)(a) read with Article 21 may require an expansive interpretation as had been done by the minority view as expressed by Subba Rao J. in the aforesaid case. The freedom of movement in clause (d) of Art.19(1) must be a movement in a free country i.e. in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control. The petitioner being banished and ex-communicated is certainly deprived of these freedom. He can move physically, but he cannot do so freely in the village. His activities are watched and noted and anyone who interacts would be punished. Thus this banishment and ex-communication cast upon him perforce engender inhibitions in him and he cannot act freely as he would like to do.
It would be apposite to quote the words of Subba Rao J. in the aforesaid case of Kharak Singh (supra) as follows:
"28. Now let us consider the scope of Article 21. The expression "life" used in that Article cannot be confined only to the taking away of life i.e. causing death. In Munn v. Illinois, (1877) 94 US 113 Field, J., defined "life" in the following words:
"Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, of the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world."
The expression "liberty" is given a very wide meaning in America. It takes in all the freedoms. In Bolling v. Sharpe, (1954) 347 US 497, 499 the Supreme Court of America observed that the said expression was not confined to mere freedom from bodily restraint and that liberty under law extended to the full range of conduct which the individual was free to pursue, But this absolute right to liberty was regulated to protect other social interests by the State exercising its power such as police power, the power of eminent domain, the power of taxation etc. The proper exercise of the power which is called the due process of law is controlled by the Supreme Court of America. In India the word "liberty" has been qualified by the word "personal", indicating thereby that it is confined only to the liberty of the person. The other aspects of the liberty have been provided for in other Articles of the Constitution. The concept of personal liberty has been succinctly explained by Dicey in his book on Constitutional Law, 9th edn. The learned author describes the ambit of that right at pp. 207-08 thus:
"The right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification."
Blackstone in his Commentaries on the Laws of England, Book 1, at p. 134 observes:
"Personal liberty includes the power to locomotion of changing situation, or removing ones person to whatsoever place ones inclination may direct, without imprisonment or restraint, unless by due course of law."
In A.K. Gopalan case, 1950 SCR 88. it is described to mean liberty relating to or concerning the person or body of the individual; and personal liberty in this sense is the antithesis of physical restraint or coercion. The expression is wide enough to take in a right to be free from restrictions placed on his movements. The expression "coercion" in the modern age cannot be construed in a narrow sense. In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization advances the psychological restraints are more effective than physical ones. The scientific methods used to condition a mans mind are in a real sense physical restraints, for they engender physical fear channeling ones actions through anticipated and expected grooves. So also the creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints. Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a persons house, where he lives with his family, is his "castle"; it is his rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurter J., in Wolf v. Colorado, [1949] 238 US 25 pointing out the importance of the security of ones privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a persons movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a mans physical happiness and health than a calculated interference with his privacy. We would, therefore, define the right of personal liberty in Article 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures. It so understood, all the acts of surveillance under Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution.
29. This leads us to the second question, namely, whether the petitioners fundamental right under Article 19(1)(d) is also infringed. What is the content of the said fundamental right It is argued for the State that it means only that a person can move physically from one point to another without any restraint. This argument ignores the adverb "freely" in clause (d). If that adverb is not in the clause, there may be some justification for this contention; but the adverb "freely" gives a larger content to the freedom. Mere movement unobstructed by physical restrictions cannot in itself be the object of a persons travel. A person travels ordinarily in quest of some objective. He goes to a place to enjoy, to do business, to meet friends, to have secret and intimate consultations with others and to do many other such things. If a man is shadowed, his movements are obviously constricted. He can move physically, but it can only be a movement of an automaton. How could a movement under the scrutinizing gaze of the policemen be described as a free movement The whole country is his jail. The freedom of movement in clause (d) therefore must be a movement in a free country i.e. in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control. The petitioner under the shadow of surveillance is certainly deprived of this freedom. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce engender inhibitions in him and he cannot act freely as he would like to do. We would, therefore, hold that the entire Regulation 236 offends also Article 19(1)(d) of the Constitution.
30. Assuming that Article 19(1)(d) of the Constitution must be confined only to physical movements, its combination with the freedom of speech and expression leads to the conclusion we have arrived at. The act of surveillance is certainly a restriction on the said freedom. It cannot be suggested that the said freedom is also bereft of its subjective or psychological content, but will sustain only the mechanics of speech and expression. An illustration will make our point clear. A visitor, whether a wife, son or friend, is allowed to be received by a prisoner in the presence of a guard. The prisoner can speak with the visitor; but, can it be suggested that he is fully enjoying the said freedom It is impossible for him to express his real and intimate thoughts to the visitor as fully as he would like. But the restrictions on the said freedom are supported by valid law. To extend the analogy to the present case is to treat the man under surveillance as a prisoner within the confines of our country and the authorities enforcing surveillance as guards, without any law of reasonable restrictions sustaining or protecting their action. So understood, it must be held that the petitioners freedom under Article 19(1)(a) of the Constitution is also infringed. (emphasis added)
55. In A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383, the Supreme Court considered the scope of Article 19(1)(d) in the context of preventive detention and clarified that what this Article provides is that every citizen has the freedom of movement throughout the territory of India, not only inter-state but also intra-state which can be restricted only in the interest of general public or the protection of the interest of any Scheduled Tribe. It was held that,
"10. ..On the contrary, in my opinion, reading sub-clause (d) as a whole the words "territory of India" are very important. What is sought to be protected by that sub-clause is the right to freedom of movement i.e. without restriction, throughout the territory of India. Read with their natural grammatical meaning the sub-clause only means that if restrictions are sought to be put upon movement of a citizen from State to State or even within a State such restrictions will have to be tested by the permissive limits prescribed in clause (5) of that Article. Sub- clause (d) has nothing to do with detention, preventive or punitive. The Constitution mentions a right to freedom of movement throughout the territory of India. Every word of that clause must be given its true and legitimate meaning and in the construction of a Statute, particularly a Constitution, it is improper to omit any word which has a reasonable and proper place in it or to refrain from giving effect to its meaning. This position is made quite clear when clause (5) is read along with this sub-clause. It permits the imposition of reasonable restrictions on the exercise of such right either in the interest of general public or the protection of the interest of any Scheduled Tribe.
(emphasis added)
56. In the light of the above decisions, one can without any doubt say that the right to move freely anywhere in the country, even inside ones own State and certainly to his own village is guaranteed under Articles 19(1)(d) and Article 21 of the Constitution which can be restricted reasonably only by a valid law, that too only on in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Such freedom cannot be curtailed otherwise, as has been done by the impugned orders. These orders are neither based on any valid law on any of the aforesaid two permissible grounds. The question of these restrictions being reasonable does not arise for consideration at all in absence of fulfilling any of the aforesaid conditions.
In view of the above, there can be no doubt that that the impugned orders are violative of the fundamental rights of the petitioner as guaranteed under Article 19(1)(d) read with Article 21 of the Constitution.
57. It may be noted that though the Respondent nos. 4 and 5 have stated that the petitioner was subjected to the aforesaid punishments, it was not because of contesting the election but for defying the decision of the village customary bodies, the effect of such a decision is to prevent contesting the election which is a constitutional right of any citizen, which cannot be curtailed except by an enactment of the appropriate legislature and certainly not by a village body.
The Supreme Court in Rajbala v. State of Haryana, (2016) 2 SCC 445 held that,
"45. The right to vote at and right to contest an election to a panchayat are constitutional rights subsequent to the introduction of Part IX of the Constitution of India. Both the rights can be regulated/curtailed by the appropriate legislature directly. Parliament can indirectly curtail only the right to contest by prescribing disqualifications for membership of the legislature of a State.
46. It is a settled principle of law that curtailment of any right whether such a right emanates from common law, customary law or the Constitution can only be done by law made by an appropriate legislative body. Under the scheme of our Constitution, the appropriateness of the legislative body is determined on the basis of the nature of the rights sought to be curtailed or relevant and the competence of the legislative body to deal with the right having regard to the distribution of legislative powers between Parliament and State Legislatures. It is also the settled principle of law under our Constitution that every law made by any legislative body must be consistent with provisions of the Constitution.
Though the aforesaid decision was rendered in the context of the Panchayat election, the said principle will be equally applicable to the Assembly election.
58. Ld. Senior Counsel for the Respondent nos.4 and 5 has tried to justify the power and authority of the Respondent nos. 4 and 5 to pass such impugned orders on the strength of Article 371A of the Constitution. According to the Respondents no. 4 and 5, customary laws which have obtained the force of law are recognized and applicable and protected by a specific Constitutional safeguard provided under Article 371A.
This Court however, is not inclined to accept the said submission.
Relevant portions Article 371 A of the Constitution which makes a special provision for the State of Nagaland read as follows.
"371-A. Special provision with respect to the State of Nagaland.
(1) Notwithstanding anything in this Constitution,
(a) no Act of Parliament in respect of
(i) religious or social practices of the Nagas,
(ii) Naga customary law and procedure,
(iii) administration of civil and criminal justice involving decisions according to Naga customary law,
(iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides;
(b) the Governor of Nagaland shall have special responsibility with respect to law and order in the State of Nagaland for so long as in his opinion internal disturbances occurring in the Naga Hills-Tuensang Area immediately before the formation of that State continue therein or in any part thereof and in the discharge of his functions in relation thereto the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken:
Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this sub-clause required to act in the exercise of his individual judgment, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in the exercise of his individual judgment:
Provided further that if the President on receipt of a report from the Governor or otherwise is satisfied that it is no longer necessary for the Governor to have special responsibility with respect to law and order in the State of Nagaland, he may by order direct that the Governor shall cease to have such responsibility with effect from such date as may be specified in the order;
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What the aforesaid Article essentially provides is that no Act of Parliament in respect of (i) religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides. Thus, the aforesaid Article deals with applicability of Parliamentary enactments in the State of Nagaland, not with the practice or validity per se of customary laws.
In the present case, we are not dealing with any issue involving application of any act of the Parliament dealing with customary law nor with the validity of any customary law, except for the effect it may have on the fundamental rights of the petitioner. What is in issue before this Court is about the legal/ constitutional validity of certain actions/decisions taken by the customary body on the basis of customary laws and whether such actions/ decisions are compliant with constitutional provisions. The actions of the Respondent nos. 4 and 5 are being tested on the anvil of Articles 21 and 19 of the Constitution and not on the touchstone of any enactment of the Parliament. Applicability of any Act of the Parliament in the State of Nagaland is not an issue before this Court. Hence, the submission of the Ld. Senior Counsel for the Respondents no. 4 and 5 are not relevant to our present consideration and hence, ignored.
59. It may be also mentioned that though the Respondent nos.4 and 5 have used the expression, social boycott in the impugned order, the effect is as good as excommunication from the society in the village as by the said social boycott any one or a group have been barred from interacting with the petitioner.
As regards the law of excommunication or social boycott in India, the same is permissible, if it forms an essential part of any religious practice as held in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496 : AIR 1962 SC 853 .
In the aforesaid case, the Bombay Prevention of Excommunication Act, 1949 was challenged. The said Act of 1949 made any act of ex-communication of any member of the community, illegal and a punishable offence. The said Act of 1949 was challenged by the head of the Dawoodi Bohras, as being impinging upon the right of the Dawoodi Bohras to freely practice their religion according to their own faith and practice, a right guaranteed under Articles 25 and 26 of the Constitution. It was contended that the right of the head of the Dawoodi Bohra community to ex- communicate is an essential part of the creed of the Dawoodi Bohra sect as it is a necessary measure of discipline for maintenance of integrity of the community, to hold together the community, so that the community faith, belief and practice can be preserved and hence protected by Article 26(b), which reads as follows:
"Article 26. Freedom to manage religious affairs.Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law."
60. The Supreme Court held in the aforesaid case of Sardar Syedna (supra) that making ex-communication illegal on religious ground is violative of Article 26(b) of the Constitution.
39. Let us consider first whether the impugned Act contravenes the provisions of Article 26(b). It is unnecessary for the purpose of the present case to enter into the difficult question whether every case of excommunication by the Dai on whatever grounds inflicted is a matter of religion. What appears however to be clear is that where an excommunication is itself based on religious grounds such as lapse from the orthodox religious creed or doctrine (similar to what is considered heresy, apostasy or schism under the Canon Law) or breach of some practice considered as an essential part of the religion by the Dawoodi Bohras in general, excommunication cannot but be held to be for the purpose of maintaining the strength of the religion. It necessarily follows that the exercise of this power of excommunication on religious grounds forms part of the management by the community, through its religious head, "of its own affairs in matters of religion". The impugned Act makes even such excommunications invalid and takes away the power of the Dai as the head of the community to excommunicate even on religious grounds. It, therefore, clearly interferes with the right of the Dawoodi Bohra community under clause (b) of Article 26 of the Constitution.
(emphasis added)
It was also held that,
58. Pausing here, it might be mentioned that excommunication might bear two aspects: (1) as a punishment for crimes which the religious community justifies putting one out of its fold. In this connection it may be pointed out that in a theocratic State the punitive aspect of excommunication might get emphasized and might almost take the form of a general administration by religious dignitaries of ordinary civil law. But there is another aspect which is of real relevance to the point now under consideration. From this point of view excommunication might be defined as the judicial exclusion from the right and privileges of the religious community to whom the offender belongs. Here it is not so much as a punishment that excommunication is inflicted but is used as a measure of discipline for the maintenance of the integrity of the community, for in the ultimate analysis the binding force which holds together a religious community and imparts to it a unity which makes it a denomination is a common faith, common belief and a belief in a common creed, doctrines and dogma. A community has a right to insist that those who claim to be within its fold are those who believe in the essentials of its creed and that one who asserts that he is a member of the denomination does not, at least, openly denounce the essentials of the creed, for if everyone were at liberty to deny these essentials, the community as a group would soon cease to exist. It is in this sense that it is a matter of the very life of a denomination that it exercises discipline over its members for the purpose of preserving unity of faith, at least so far as the basic creed or doctrines are concerned. The impugned enactment by depriving the head of the power and the right to excommunicate and penalising the exercise of the power, strikes at the very life of the community by rendering it impotent to protect itself against dissidents and schismatic. It is thus a violation of the right to practise religion guaranteed by Article 25(1) and is also violative of Article 26 in that it interferes with the rights of the Dai as the trustee of the property of the denomination to so administer it as to exclude dissidents and excommunicated persons from the beneficial use of such property.
The said principle was followed in Riju Prasad Sarma (supra) referred to above.
61. The Supreme Court upheld the right of the head of a religious community to ex-communicate a member of the community on the ground that it was an essential part of their religious practice to uphold their religious practice, which is protected under Article 26 (b) of the Constitution. This right to ex-communicate is thus referable to the religious practice of the particular community. This right to excommunicate, if not part of any religious practice coming within the ambit of Article 26, cannot be exercised on any other ground.
In the present case, the order for social boycott or ex-communication directed against the petitioner is not on the ground of violation of any religious tenet so as to come within the scope of Article 26(b) and hence, it is not protected by Article 26(b) or 25 of the Constitution. Accordingly, such a social boycott is beyond the permissible parameters of law and hence, invalid.
62. In this context it may be apposite to refer to the minority view expressed by Chief Justice B. P. Sinha in the aforesaid case of Sardar Syedna (supra), in which His Lordship likened excommunication to untouchability, which is prohibited under Article 17 of the Constitution.
"24. On the social aspect of excommunication, one is inclined to think that the position of an excommunicated person becomes that of an untouchable in his community, and if that is so, the in declaring such practices to be void has only carried out the strict injunction of Article 17 of the Constitution, by which untouchability has been abolished and its practice in any form forbidden. The article further provides that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. The Act, in this sense, is its logical corollary and must, therefore, be upheld.
63. This minority view was highlighted by the Supreme Court in the Indian Young Lawyers Association & Ors. vs. The State of Kerala & Ors, 2018 SCC OnLine SC 1690 , popularly known as Sabrimala case to emphasis the impermissibility of barring women of the age group of 10 to 50 years from entering the Sabrimala Temple in the following words ( DR. D. Y. Chandrachud J.),
"214. In a strong dissent, Chief Justice Sinha concluded that the matter of excommunication was not purely of a religious nature. Clarifying that his analysis was confined to the civil rights of the members of the community, Justice Sinha opined:
"11 The impugned Act, thus, has given full effect to modern notions of individual freedom to choose ones way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief. It is also aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others."
Justice Sinha drew a distinction between matters of religion as protected under Article 26(b) and activities associated with religion, though not intimately connected with it:
"18 Now, Art. 26(b) itself would seem to indicate that a religious denomination has to deal not only with matters of religion, but other matters connected with religion, like laying down rules and regulations for the conduct of its members and the penalties attached to infringement of those rules, managing property owned and possessed by the religious community, etc., etc. We have therefore, to draw a line of demarcation between practises consisting of rites and ceremonies connected with the particular kind of worship, which is the tenet of the religious community, and practises in other matters which may touch the religious institutions at several points, but which are not intimately concerned with rites and ceremonies the performance of which is an essential part of the religion."
64. The aforesaid decision in Sardar Syedna (supra) is presently pending consideration before a Bench of five judges as directed in Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673 ,
"14. In the facts and circumstances of this case, we are satisfied that the matter should be placed for hearing before a Constitution Bench (of five Judges) and not before a larger Bench of seven Judges. It is only if the Constitution Bench doubts the correctness of the law laid down in Sardar Syedna Taher Saifuddin Saheb case that it may opine in favour of hearing by a larger Bench consisting of seven Judges or such other strength as the Chief Justice of India may in exercise of his power to frame a roster may deem fit to constitute."
However, it may be mentioned herein that even if the permissibility of ex-communication in the religious sphere is upheld, it would be because of the protection granted to every religious denomination or any section thereof to manage its own affairs in matters of religion under Article 26 (b) of the Constitution.
As mentioned above, the ex-communication imposed on the petitioner is not by any religious denomination on religious ground but by a village body exercising authority on local customary laws.
65. In this context, one may also argue, though the Respondents no. 4 and 5 have never pleaded nor made any submission in this regard, that if Article 26(b) permits ex-communication by a religious denomination as part of management of its own affairs in the matters of religion, similar authority could be exercised by a minority community having distinct language, script or culture to conserve the same under Article 29 of the Constitution.
Article 29 reads as follows:
"29. Protection of interests of minorities.(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same."
It could perhaps be argued that the Ao Naga tribes (to which the contesting parties belong) who are inhabitants of Chuchuyimlang village having distinct language and culture have the guaranteed fundamental right of conserving their own culture and as part of the process of conserving their culture, they could resort to ex-communication. However, since this plea has not been specifically raised by the Respondents no.4 and 5, this Court is also not making any decision on it, expect to make the observation that in the light of significant strides made in Indian jurisprudence and constitutional law relating to the scope of Article 21 with human dignity as the fulcrum for such interpretations, it is doubtful, whether such archaic concept of excommunication could stand the test of scrutiny of the stringent yet modern requirements of Article 21 with widening vistas already opened through judicial interpretations.
In fact, the minority approach in Sardar Syedna (supra) approximating ex-communication to untouchability has found a favourable echo in the Sabrimala Case. This is because of the reason that in interpreting statutes Courts can no longer ignore the overarching concept of human dignity embodied in Article 21 of the Constitution as well as the expanding vistas of Article 14. Much water has flown down the river Ganges after the interpretation by the Supreme Court in Sardar Syedna (supra) in 1962, after the landmark judgments, just to mention a few in Maneka Gandhi v. Union of India (1978)1 SCC 248 , Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others (1981)1 SCC 608 , Olga Tellis and others v. Bombay Municipal Corporation and others (1985)3 SCC 545 , Bandhua Mukti Morcha v. Union of India and others (1984) 3 SCC 161 , Unni Krishnan v. State of A.P (1993) 1 SCC 645 , etc. apart from the decisions already referred in this case expositing the ever widening scope of Articles 21 and 21.
In Sabrimala Case, the importance of Constitutional values based on individual liberty, equality and dignity have been stressed in the following words,
"233. Human dignity postulates an equality between persons. The equality of all human beings entails being free from the restrictive and dehumanizing effect of stereotypes and being equally entitled to the protection of law. Our Constitution has willed that dignity, liberty and equality serve as a guiding light for individuals, the state and this Court. Though our Constitution protects religious freedom and consequent rights and practices essential to religion, this Court will be guided by the pursuit to uphold the values of the Constitution, based in dignity, liberty and equality. In a constitutional order of priorities, these are values on which the edifice of the Constitution stands. They infuse our constitutional order with a vision for the future-of a just, equal and dignified society. Intrinsic to these values is the anti-exclusion principle. Exclusion is destructive of dignity. To exclude a woman from the might of worship is fundamentally at odds with constitutional values.
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252. The consistent discourse flowing through these writings reflects a longstanding fight against subjugation and of atrocities undergone by the victims of an unequal society. Article 17 is a constitutional recognition of these resentments. The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society. Article 17 is a revolt against social norms, which subjugated individuals into stigmatised hierarchies. By abolishing "untouchability", Article 17 protects them from a repetition of history in a free nation. The background of Article 17 thus lies in protecting the dignity of those who have been victims of discrimination, prejudice and social exclusion.
Article 17 must be construed from the perspective of its position as a powerful guarantee to preserve human dignity and against the stigmatization and exclusion of individuals and groups on the basis of social hierarchism. Article 17 and Articles 15(2) and 23, provide the supporting foundation for the arc of social justice. Locating the basis of Article 17 in the protection of dignity and preventing stigmatization and social exclusion, would perhaps be the apt answer to Professor KT Shahs unanswered queries. The Constitution has designedly left untouchability undefined. Any form of stigmatization which leads to social exclusion is violative of human dignity and would constitute a form of "untouchability". The Drafting Committee did not restrict the scope of Article 17. The prohibition of "untouchability", as part of the process of protecting dignity and preventing stigmatization and exclusion, is the broader notion, which this Court seeks to adopt, as underlying the framework of these articles.
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276. Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution.
Our Constitution marks a vision of social transformation. It marks a break from the past - one characterized by a deeply divided society resting on social prejudices, stereotypes, subordination and discrimination destructive of the dignity of the individual. It speaks to the future of a vision which is truly emancipatory in nature. In the context of the transformative vision of the South African Constitution, it has been observed that such a vision would:
"require a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. The challenge of achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships."202
277. The Indian Constitution is marked by a transformative vision. Its transformative potential lies in recognizing its supremacy over all bodies of law and practices that claim the continuation of a past which militates against its vision of a just society. At the heart of transformative constitutionalism, is a recognition of change. What transformation in social relations did the Constitution seek to achieve What vision of society does the Constitution envisage The answer to these questions lies in the recognition of the individual as the basic unit of the Constitution. This view demands that existing structures and laws be viewed from the prism of individual dignity.
Did the Constitution intend to exclude any practice from its scrutiny Did it intend that practices that speak against its vision of dignity, equality and liberty of the individual be granted immunity from scrutiny Was it intended that practices that detract from the transformative vision of the Constitution be granted supremacy over it To my mind, the answer to all these, is in the negative.
The individual, as the basic unit, is at the heart of the Constitution. All rights and guarantees of the Constitution are operationalized and are aimed towards the self-realization of the individual. This makes the anti-exclusion principle firmly rooted in the transformative vision of the Constitution, and at the heart of judicial enquiry. Irrespective of the source from which a practice claims legitimacy, this principle enjoins the Court to deny protection to practices that detract from the constitutional vision of an equal citizenship."
66. Excommunication is essentially ecclesiastical in concept and origin. Historically it was the Catholic Church which used it frequently to deal with heretics. It is an institutional act of religious censure used to deprive, suspend, or limit membership in a religious community or to restrict certain rights within it, in particular receiving of the sacraments. It is also used more generally to refer to similar types of institutional religious exclusionary practices and shunning among other religious groups. The word excommunication means putting a specific individual or group out of communion. Excommunication may involve banishment, shunning and shaming depending on the group, the offense that caused excommunication, or the rules or norms of the religious community. [Source: Wikipedia]
Excommunication even though is still permissible as part of freedom to religious denominations in managing their own affairs, because of the negative effect it has on the affected person, has been strictly construed. Even in Sardar Syedna (supra), the Supreme Court observed based on the decision of the Privy Council in the case of Hasanali v. Mansoorali, (1947) LR 75 IA 1 that the Dai-ul-Mutlaq did not have unrestricted power of excommunication and that it was not absolute, arbitrary and untrammeled and laid down the conditions for the valid exercise of that power.
It was also observed in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, 1995 Supp (4) SCC 286 that excommunication should not be lightly exercised as it deprives a person of his right of worship. It was also explained that,
"47. One of the effects of such action is that the person concerned is deprived of the right of worship. Under our Constitution it is a fundamental right. Any interference with it or its deprivation can be challenged in a court of law. Even in England the Courts extend protection regarding ecclesiastical matters if they affect the right as is clear from para 337 of Halsburys Laws of England, 4th Edn., Vol. 14."
In the aforesaid case, the Supreme Court held that the excommunication of Catholicos by Patriarch of Antioch could not be upheld canonically, traditionally or constitutionally as it was violative of the norms which were mandatorily required to be observed conventionally.
67. Now coming to issue of banishment or exile, it was extensively practiced in the ancient and medieval times as a means of punishment which continued during the colonial days in many countries mainly for political reasons. However, it came to frowned upon as derogatory to human dignity and freedom and in the post colonial era has come to be discontinued in most of the countries except in the authoritarian regimes where it is still resorted to deal with political dissidents.
In the common law tradition, banishment is defined as "a punishment inflicted upon criminals, by compelling them to quit a city, place or country for a specified period of time, or life .. " (Blacks Law of Dictionary, 1951).
The contemporary practice of banishment, however, is seen in many democratic countries in a limited form as a means to secure absence of persons convicted of felony or accused of such crimes from certain geographical areas or time, normally as part of bail bonds in the form of exclusion orders, off limit orders etc. But these are of limited scope and nature, usually imposed by the Courts. Even in India, criminal courts can impose conditions of bail that the accused be debarred from visiting certain areas during the bail period. However, banishment or exile as a punishment is now considered derogatory to human values, dignity and freedom and not approved of.
68. It may not be out of place to mention that under the law relating to election, the idea of banishment or excommunication has been considered so abhorable that any attempt or act on the part of the candidate or his agent to threaten any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community is considered a major corrupt practice under the Representation of the People Act, 1951 as provided under Section 123 thereof, which reads as follows.
"123. Major Corrupt practices.The following shall be deemed to be corrupt practices for the purposes of this Act:
(1) "Bribery", that is to say
(A) any gift, offer or promise
(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward.
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:
Provided that
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,
shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
.."
(emphasis added)
69. In this context, it may not be out of place to refer to the decision of the Supreme Court in Shakti Vahini v. Union of India, (2018) 7 SCC 192 where the Supreme Court was dealing with the extra constitutional authority exercised by Khap Panchayats in meting out punishments to youngsters who were falling in love and marrying against the desire of the parents/elders of the community, by usurping the role of the democratic institutions in total defiance of the Rule of Law. The Supreme Court in the aforesaid case made the following telling observations,
"41. ..If there is offence committed by one because of some penal law, that has to be decided as per law which is called determination of criminality. It does not recognise any space for informal institutions for delivery of justice. It is so since a polity governed by "Rule of Law" only accepts determination of rights and violation thereof by the formal institutions set up for dealing with such situations. It has to be constantly borne in mind that rule of law as a concept is meant to have order in a society. It respects human rights. Therefore, the khap panchayat or any panchayat of any nomenclature cannot create a dent in exercise of the said right.
42. In this regard, we may fruitfully reproduce a passage from Kartar Singh v. State of Punjab14 wherein C.G. Weeramantry in The Law in Crisis Bridges of Understanding emphasising the importance of rule of law in achieving social interest has stated: (SCC p. 625, para 41)
"41. The protections the citizens enjoy under the Rule of Law are the quintessence of twenty centuries of human struggle. It is not commonly realised how easily these may be lost. There is no known method of retaining them but eternal vigilance. There is no known authority to which this duty can be delegated but the community itself. There is no known means of stimulating this vigilance but education of the community towards an enlightened interest in its legal system, its achievements and its problems."
70. The petitioner in this case, made a choice to contest the Assembly Election contrary to the desire of the village customary body for which he was penalized. Coming to individual choices one can make in a democratic country governed by "Rule of Law", the Honble Supreme Court went on to observe in the aforesaid case of Shakti Vahini (supra) as follows.
"44. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and the values it stands for. It is the obligation of the constitutional courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. Without sustenance of liberty, subject to constitutionally valid provisions of law, the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate imposition of thoughts and ideas without a voice to dissent or record a disagreement. The fundamental feature of dignified existence is to assert for dignity that has the spark of divinity and the realisation of choice within the parameters of law without any kind of subjugation. The purpose of laying stress on the concepts of individual dignity and choice within the framework of liberty is of paramount importance. We may clearly and emphatically state that life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of identity of a person.
45. The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. True it is, the same is bound by the principle of constitutional limitation but in the absence of such limitation, none, we mean, no one shall be permitted to interfere in the fructification of the said choice. If the right to express ones own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness. When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation. The majority in the name of class or elevated honour of clan cannot call for their presence or force their appearance as if they are the monarchs of some indescribable era who have the power, authority and final say to impose any sentence and determine the execution of the same in the way they desire possibly harbouring the notion that they are a law unto themselves or they are the ancestors of Caesar or, for that matter, Louis the XIV. The Constitution and the laws of this country do not countenance such an act and, in fact, the whole activity is illegal and punishable as offence under the criminal law."
The exercise of the individual choice to contest an election is part of Article 21 and also a constitutional right which cannot be nullified with the acts or threat of punishment, much less banishment and ex-communication.
Therefore, this Court would hold the order of banishment which is equally derogatory of human dignity, and thus violative of Article 21 of the Constitution, apart from violating the fundamental right of the petitioner to move freely throughout the territory of India and to reside and settle in any part of the territory of India as guaranteed under Articles 19(1)(d) and (e) of the Constitution, is illegal and void.
71. In this context, we may have a birds eye view about the laws prevalent in other parts of the world with reference to customary laws.
72. The highest level of recognition of customary law is found in African Constitutions, both in terms of the number of countries with relevant provisions and the breadth of aspects of customary law covered. As many as 33 African countries referred to customary law in some form. There is a high level of recognition of traditional and customary institutions, as well as a broad recognition of customary law in the courts. In fact, in the African continent the applicability and recognition to customary laws is perhaps most pervasive of almost all the countries. Most of the societies in many of these countries are deeply rooted in their traditions and cultures and thus, there is a strong presence of customary laws in managing the affairs of the country.
Many countries like Angola, Botswana, Democratic Republic of Congo, Ghana, Lesotho, South Africa, Swaziland, Uganda, Zambia, Zimbabwe etc. have specific constitutional provisions dealing with customary laws and providing institutional mechanism.
However, in most of these countries, the customary laws have been made subject to the Constitution.
Some jurisdictions provide for preserving, establishing customary law courts and in some like the Democratic Republic of the Congo it is provided that courts shall apply customary law which is not contrary to public order [vide Article 153 of the Constitution of the Democratic Republic of the Congo], which provides that "... the civil military courts and tribunals apply the duly ratified international treaties, the laws and regulatory measures, provided that they are in conformity with the laws as well as customary laws unless the latter is contrary to public order or morality "
73. In South Africa, under Section 211 of the South African Constitution, customary laws are recognised as a source of law but subject to the Constitution and also to any legislation which specifically deals with customary laws.
"S 211: (1) The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.
(2) A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs.
(3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law."
The rights to enjoy and practice their religion, language, culture conferred to persons belonging to cultural, religious or linguistic community under Section 31 of the Constitution are not to be exercised in a manner inconstant with any of the provisions of the Bill of Rights as provided under Chapter 2 of the Constitution.
"S 31: (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community - (a) to enjoy their culture, practise their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.
Under Section 39 of the Constitution, Courts and tribunals while interpreting any legislation, and when developing the common law or customary are to promote the spirit, purport and objects of the Bill of Rights. It has been further provided that all rights and freedom under common law or customary law or legislation must be consistent with the Bill of Rights.
"S 39: (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill."
Thus, under the South African Constitution, Bill of Rights are given primacy over the common law as well as customary law, even though customary law is given prominence under the Constitution.
74. To appreciate this position, we may refer to a few decisions in this regard. The fact that customary law forms a core element of the South African legal system is evident from the decision in Alexkor Ltd v. The Richtersveld Community, 2004 (5) SA 460 (CC) in which the Constitutional Court of South Africa observed as follows:
"51. While in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law. Like all law it depends for its ultimate force and validity on the Constitution(Compare Pharmaceutical Manufacturers Association of South Africa and Another in re Ex Parte the President of the Republic of South Africa and Others above n 25 at para 44.). Its validity must now be determined by reference not to common law, but to the Constitution (Section 2 of the Constitution, see Mabuza v Mbatha 2003 (7) BCLR 43 (C) at para 32.) The courts are obliged by section 211(3) of the Constitution to apply customary law when it is applicable, subject to the Constitution and any legislation that deals with customary law. In doing so the courts must have regard to the spirit, purport and objects of the Bill of Rights(Section 39(2) of the Constitution.). Our Constitution does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill [of Rights]."( Section 39(3) of the Constitution.)
It is clear, therefore that the Constitution acknowledges the originality and distinctiveness of indigenous law as an independent source of norms within the legal system. At the same time the Constitution, while giving force to indigenous law, makes it clear that such law is subject to the Constitution and has to be interpreted in the light of its values. Furthermore, like the common law, indigenous law is subject to any legislation, consistent with the Constitution, that specifically deals with it(Section 211(3) of the Constitution."). In the result, indigenous law feeds into, nourishes, fuses with and becomes part of the amalgam of South African law."
Thus, in South Africa, the validity of the customary law is sought to be tested on the anvil of the Constitution. Occasionally, the issue crops up as to whether the application of customary law can be compatible human rights guaranteed by the Bill of Right. It has been held that the practice of culture should not undermine any of the basic human rights as detailed in the Bill of Rights and that culture must be practiced in a manner that remains in accordance with the provisions concerning rights to equality and dignity.
Considered from that perspective, the practice of primogeniture was held to be not conforming to the constitutional advancement of gender equality and the Constitutional Court of South Africa declared the practice unconstitutional in 2004 in Bhe and Others v. Khayelitsha Magistrate and Others, [2005 (1) BCLR 1 (CC), 15 Oct. 2004] by holding it to be violative of the Bill of Rights since "it excludes women from being considered for succession to the deceased family head."
[Reference:https://www.sahistory.org.za/article/customary-law-south-africa-historical-development - legal -system-and-its-relation-women%E2%80%99s-right]
75. In Kenya, Article 11(1) of the Constitution of Kenya recognizes culture as the foundation of the nation. It reads as follows:
"Art.11: (1) This Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation."
Though, it has been provided under Article 45(4) that the Parliament shall enact legislation that recognizes (a) marriages concluded under any tradition, or system of religious, personal or family law; and (b) any system of personal and family law under any tradition, or adhered to by persons professing a particular religion, to the extent that any such marriages or systems of law are consistent with this Constitution, it has been emphatically provided under Article 2(4) that any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid as also provided under Article 13 of the Indian Constitution.
Article 2(4) of the Kenyan Constitution reads as follows:
"Art.2: (4) Any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid."
76. Sudanese Constitution of 2005 ensures the ethnic and cultural communities have the right to freely enjoy and develop their particular cultures, to practice their beliefs, use their languages, observe their religions and raise their children within the framework of their respective cultures and customs (Art.47).
At the same time, the State is also called upon to combat customs and traditions which undermine the dignity and status of women under Art 32(3), which reads as follows:
"Article 32(3): The State shall combat harmful customs and traditions which undermine the dignity and the status of women."
Sudanese Constitution also favours primacy of the national constitution over customary law. It has been provided under Art XXIV of the Sudanese Constitution that cultural and customary values which are consistent with fundamental rights and freedoms, human dignity, democracy, and with the Constitution may be developed and incorporated in aspects of Ugandan life.
Art 2 (2) further provides that if any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, will be void.
77. Under the Namibian Constitution, though customary and common laws are given importance these are subject to the Constitution. Article 66 of the Namibian Constitution specifically provides that customary law in force shall remain valid to extent it does not conflict with the Constitution or any other statutory law. Article 66 reads as follows:
"Article 66: Customary and Common Law:
(1) Both the customary law and the common law of Namibia in force on the date of Independence shall remain valid to the extent to which such customary or common law does not conflict with this Constitution or any other statutory law.
(2) Subject to the terms of this Constitution, any part of such common law or customary law may be repealed or modified by Act of Parliament, and the application thereof may be confined to particular parts of Namibia or to particular periods."
(emphasis added)
78. In Oceanic country like Palau, the Constitution expressly provides that statues and traditional law shall be equal but where there is conflict the statute will prevail and it shall only prevail to the extent it is not inconsistent with the underlying principles of traditional law.
79. South American countries like Colombia, Peru and Venezuela recognize the authorities of indigenous peoples and state that they may exercise functions according to their own law, provided that they are not contrary to the Constitution, national law, fundamental human rights, and/or public order.
Article 246 of the Constitution of Colombia 1991 provides as follows:
"Art. 246: The authorities of indigenous peoples may exercise jurisdictional functions within their territories in accordance with their norms and procedures, provided they are not inconsistent with the Constitution and the laws of the Republic. The law shall regulate the way this special jurisdiction will relate to the national judicial system."
Article 149 of the Political Constitution of Peru 1993 reads as follows:
"Article 149: Authorities of peasant and native communities, in conjunction with the peasant patrols, shall exercise jurisdictional functions at territorial level in accordance with customary law, provided they do not violate the fundamental rights of the individual. The law provides for the way of coordination of such jurisdiction with justice-of- the-peace court and other instances of the Judiciary.
Article 260 of the Constitution of the Bolivarian Republic of Venezuela 1999 provides that:
"Article 260. The legitimate authorities of indigenous peoples in their habitat may apply instances of justice based on ancient traditions and only affecting their members, according to its own rules and procedures, provided they are not contrary to this Constitution, the law and public order. The law shall determine the form of coordination of this special jurisdiction with the national judicial system."
(emphasis added)
80. Bolivias constitution states that indigenous authorities shall exercise jurisdiction in accordance with their own principles, cultural values and procedures. However, the constitution imposes the restriction on that indigenous jurisdiction that it must respect the right to life, the right to defense and all other rights guaranteed in the constitution.
"Article 190: Indigenous right to self governance
I. The nations and native indigenous rural peoples shall exercise their jurisdictional functions and competency through their authorities, and shall apply their own principles, cultural values, norms and procedures. II. The rural native indigenous jurisdiction respects the right to life, the right to defense and other rights and guarantees established in this Constitution."
81. In these South American constitutions, there is clear preference for statutory law to the customary law. Costa Ricas Constitution states that no custom or practice may be used as a defence against the enforcement of the law vide, Article 129 of the Constitution of Costa Rica 1949, which reads as follows:
"Article 129
The laws are obligatory .. No one may allege ignorance of the law except in the cases that it authorizes. .. The acts and agreements contrary to the prohibitive laws will be null, if the same laws do not provide otherwise. A law is not abrogated or derogated except by a subsequent one; disuse, custom or practice to the contrary may not be alleged against its observance.."
Bolivias constitution is the only one to express a clear hierarchy. It explicitly lists a hierarchy of laws, with the constitution above all else, followed by international treaties, then national laws including indigenous legislation), as per Article 410 of the Republic of Bolivia Constitution of 2009, which reads as follows.
"Article 410
I. Every person, natural and legal, as well as public organs, public functions and institutions, are subject to the present Constitution.
II. The Constitution is the supreme norm of Bolivian law and enjoys supremacy before any other normative disposition. The components of constitutional law include the international Treaties and Conventions in the matter of human rights and the norms of Communitarian Law, which have been ratified by the country. The application of the legal norms shall be governed by the following hierarchy, in accordance with the authority of the territorial entities:
1. Constitution of the State
2. International treaties
3. National laws, statutes of the autonomies, organic charters and the other departmental, municipal and indigenous legislation.
4. Decrees, regulations and other resolutions issued by the corresponding executive organs.
Thus, the Constitution clearly subordinates indigenous law to the constitution and international law, and does not refer to customary law that has not been codified into legislation.
82. On the other hand, recognition of customary laws in the North America and the Caribbean countries is not very high. In fact, none of these expressly recognizes customary law.
Perhaps, it is the Canadas constitution which can be said to provide a relatively strong recognition of customary law. It takes the approach of broadly recognizing aboriginal rights, rather than providing detail as to what those rights are. It reaffirms all existing aboriginal and treaty rights and preserves such rights, including land claims, despite anything in the Charter of rights and freedoms.
83. It is in the South and East Asia that the degree of constitutional recognition of customary law is one of the highest across all the regions. The bulk of South and East Asian provisions on customary law relate to the preservation of culture. There are few provisions relating to institutional arrangements. All of the provisions relate to the creation of bodies to represent indigenous rights in existing political institutions.
We will later briefly refer to the institutional arrangements obtaining in India relating to Scheduled Tribes.
Timor-Leste provides that customs other than those contrary to the constitution and legislation specifically relating to customary law are preserved.
Sec. 2(4) of the Constitution of the Democratic Republic of East Timor 2002 provides that "The State shall recognise and value the norms and customs of East Timor that are not contrary to the Constitution and to any legislation dealing specifically with customary law."
In Indonesia, Article 18 B(2) of the Constitution of the Republic of Indonesia 1945 preserves customary law that is not contrary to societal development. It reads as follows:
"Article 18B
(1) The State recognises and respects units of regional authorities that are special and distinct, which shall be regulated by law.
(2) The State recognises and respects traditional communities along with their traditional customary rights as long as these remain in existence and are in accordance with the societal development and the principles of the Unitary State of the Republic of Indonesia, and shall be regulated by law."
As with other constitutions around the world, some of the South and East Asian constitutions contain definitions of law that recognize customary law.
Under Article 152 of the Constitution of the Peoples Republic of Bangladesh, "law" means any Act, ordinance, order, rule, regulation, bye law, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh. It has been also provided under Article 26 (1) that all existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of the Constitution.
The Philippines constitution allows creation of a body to advise on policies affecting indigenous communities. Article XVI Sec. 12 of the Constitution of the Republic of the Philippines 1987.
In Philippines, the Indigenous Peoples Rights Act of 1997 was enacted with the specific purpose to recognize, protect and promote the rights of the indigenous cultural communities, indigenous peoples, creating a national commission on indigenous people and for establishing implementing mechanisms, appropriating funds etc.
However, it has been also provided under Section 2 of thethat the State shall recognize and promote all the rights of the indigenous cultural communities/indigenous peoples with the framework of the Constitution.
Section 14 of thealso provides that the State shall strengthen and support the autonomous regions created under the Constitution and allow ways of life as may be compatible with the fundamental rights defined in the Constitution of the Republic of the Philippines and other internationally recognized human rights. Section 14 reads as follows:
"Section 14. Support for Autonomous Regions. The State shall continue to strengthen and support the autonomous regions created under the Constitution as they may require or need. The
State shall likewise encourage other ICCs/IPs not included or outside Muslim Mindanao and the Cordilleras to use the form and content of their ways of life as may be compatible with the fundamental rights defined in the Constitution of the Republic of the Philippines and other internationally recognized human rights."
Section 15 of the Constitution mandates that the justice delivery system in the ICCs/IPs is to be compatible with the national legal system and with internationally recognized human rights.
"Section 15. Justice System, Conflict Resolution Institutions, and Peace Building Processes. The ICCs/IPs shall have the right to use their own commonly accepted justice systems, conflict resolution institutions, peace building processes or mechanisms and other customary laws and practices within their respective communities and as may be compatible with the national legal system and with internationally recognized human rights."
[Source: Cuskelly, Katrina. (2011). Customs and Constitutions: State recognition of customary law around the world. IUCN, Bangkok, Thailand]
84. A glance of the various Constitutions across the globe clearly indicates that wherever, customary laws have been recognized, whether to a high or low degree, customary laws have been normally subjected to the national law, as in the case in India, where it has been clearly laid down under Article 13 that customary law to the extent of being inconsistent with the Fundamental Rights as guaranteed under the Indian Constitution is void.
[85] This subjugation of customary laws to national laws is quite natural, considering the fact that today most of the democratic countries avow by the principles of liberty, equality, fraternity, justice and rule of law, where individual rights and dignity are given prominence in the national constitutions. The evolution of modern democratic societies and advancements made in the recent history of mankind makes many of the old beliefs and traditions incompatible and anachronistic to modern way of life. The adoption by most of the countries of the principles underlying Universal Declaration of Human Rights makes application of many customary laws relating to individual rights incongruous and anachronistic. Article 9 of the Universal Declaration of Human Rights provides that no one shall be subjected to arbitrary arrest, detention or exile. Similarly, Article 13 (1) declares, as Article 19(1)(d) of our Constitution, that everyone has the right to freedom of movement and residence within the borders of each state. It is now well settled that, international conventions which are not inconsistent with fundamental rights and in harmony with the spirit must be read in the provision of statues. It was held in Vishaka v. State of Rajasthan, (1997) 6 SCC 241 that,
"7. .Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution.."
Yet, the significance and importance of the traditions and customary laws cannot be ignored for these continue to play important roles in maintaining stability and harmony in the traditional societies. The significance of customary laws and practices in ensuring and preserving environment and scarce earth resources have been highlighted by many scholarly studies in this regard. Thus, many national constitutions retain the role of the customary bodies in the resource management.
However, where the role of the traditional bodies overlap into those areas where the modern political structure operates, such conflict need to be resolved on the basis of the modern national laws. So long as the traditional bodies and customary laws remain confined to their local geographical and social sphere, where the larger state structure is not much affected and basic human rights which are recognised universally are also not affected, the applicability of such traditional and customary laws ought to be allowed to remain unaffected by the national laws.
86. Such legal and constitutional arrangement is also prevalent in our country. Apart from Article 371A which gives a special status to the State of Nagaland as mentioned above, there are special provisions like Article 371-C providing special provision relating to constitution of a Hill Areas Committee and for administration of the Hill areas in the State of Manipur. There is also a similar provision under Article 371-G in respect of the State of Mizoram which also provides that notwithstanding anything in the Constitution, no Act of Parliament in respect of (i) religious or social practices of the Mizos, (ii) Mizo customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Mizo Customary law, (iv) ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of the State of Mizoram by a resolution so decides. Apart from these Constitutional provisions, there is a special provision under the Sixth Schedule to the Constitution which is applicable to the tribal areas in the State of Assam, Meghalaya, Tripura and Mizoram which confers certain autonomy to the local bodies set up under this Schedule in respect of specified subjects, including social customs. There are also provisions for setting up village councils and village courts to decide local disputes between parties all of whom belong to Scheduled Tribes [Vide Paragraph no.4(1) of the 6th Schedule].
As far as applicability of Acts of Parliament as well as of the Legislatures of the States, is concerned, it has been made conditional as mentioned in the Sixth Schedule.
However, it has been also made very clear that wherever, if there be any repugnancy with the of the Parliament or the State Legislature as the case may be, to that extent any law made by the local bodies would not have effect.
There are other Schedules Areas as provided under the Fifth Schedule applicable to the tribal areas in the States of Bihar, Madhya Pradesh, Orissa where Tribal Advisory Councils are set up to advise the State Government on such matters pertaining to the welfare of the Scheduled Tribes. It has been also provided under Paragraph 5 of the 5th Schedule that notwithstanding anything in the Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification.
87. However, no provision has been made giving an overriding effect over provisions of Part III of the Constitution. In other words, all these special provisions dealing with Scheduled Tribes are subject to the provisions of Part III and any such law or customary laws or customary practices will be subject to Article 13 of the Constitution. Thus, wherever, there is any conflict of the customary law with the Fundamental Rights under Part III of the Constitution, to the extent of inconsistency, such customary law will be void.
88. It may be also relevant to mention herein that in the State of Nagaland, administration of justice till very recently has been governed by the "Rules for the Administration of Justice and Police in Nagaland, 1937" as amended from time to time, the last amendment being the Rules for Administration of Justice and Police in Nagaland (Third Amendment) Act, 1984. Under the aforesaid amendment Act of 1984, the Customary Courts have been formally recognized and constituted.
It has been provided under Rule 39 of the Rules that there shall be three classes of Customary Courts to be constituted by the State Government for the trial of suits and cases between the parties; all of whom belonging to a Scheduled Tribe or Tribes with powers and jurisdiction mentioned therein, as
(i) Village Courts,
(ii) Subordinate District Customary Courts, (iii) District Customary Courts,
As per Rule 40 of the aforesaid Rules, there shall be a Village Court for each village which shall be composed of members of the Village Council constituted under the Nagaland Village and Area Councils Act, 1978 (including Gaon Buras and Angs of the respective village. The powers of the Village Court has been laid down under Rule 45 which enables the Village Court to try cases of civil and miscellaneous nature falling within the purview of the village or tribal laws and customs. The Village Court would have also the jurisdiction to try criminal cases falling within the purview of tribal laws, customs and offences of theft, pilfering, mischief, trespass, assault, hurt, affray of whatever kind, drunkenness or disorderly brawling, public nuisance and cases of wrongful restraint and such offences occurring within the jurisdiction of the Village Court.
It has been stated under Rule 46 (1) that a Village Court shall not be competent to pass a sentence of imprisonment in any criminal case. It shall have power to impose a fine for any offence it is competence to try, up to a limit of Rs. 500 (Rupees Five hundred). It may also award payment in restitution or compensation to the aggrieved or injured party in accordance with the customary law.
Further, in a civil case a Village Court shall have power to award costs as also compensation to those against whom unfounded or vexatious suits or cases have been instituted before the Court, and the fines and payments imposed and ordered under sub Rules (1) and (2) may be enforced by distraint of the property of the offender.
From the above, it is very clear that the Village Court which has the authority to decide on the basis of customary laws does not have the power of banishment or ex-communication as the case may be.
Neither the Subordinate District Customary Courts nor the District Customary Courts also have any such authority to impose the punishment of banishment or excommunication.
89. Thus, as evident from above, statutory laws do not recognize any form of punishment of excommunication or banishment even for offences involving customary laws. The issue raised in this petition is whether such mode of punishment will be permissible by any body or entity in purported exercise of enforcing customary laws. The answer of this Court is in the negative in the light of the discussions above referred.
90. In the result, for the reasons discussed above, the impugned orders dated 5.3.2018 (Annexure 3), dtd. 12.3.2018 (Annexure 6) and dtd. 22.3.2018 (Annexure 11) are set aside as void, being violative of fundamental rights as guaranteed under Articles 19(1)(d) & (e) and Article 21 of the Constitution. Consequently, the petitioner and his supporters would be entitled to remain in their village and cannot be subject to social boycott/expulsion from the village as directed by the Respondent Nos.4 and 5.
91. This writ petition is accordingly allowed. Parties to bear their own cost.
Shri Mangyang Lima v. State Of Nagaland And Others
Shri Mangyang Lima v. State Of Nagaland And Others
(High Court Of Gauhati)
Writ Petition (C) No. 83 (K) of 2018 | 09-01-2019
Advocate List
Bench
- HON'BLE JUSTICE N. KOTISWAR SINGH, J.
Eq Citations
- LQ/GauHC/2019/17
- LQ/GauHC/2019/17
Head Note
Constitutional Law — Writ — Village Council — Writ jurisdiction — Whether Village Council amenable to writ jurisdiction — Held, yes; Village Council, though a private body, exercises pervasive control over the social lives of the villagers and imposes punitive and monopolistic regulatory power over the villagers — These bodies, even if not government bodies, discharge duties which are public in nature — It is not confined to only a few individuals, but their writ runs over the entire village, who are subject to their decisions who may disobey on the pain of punishment and penalties — The writ of the Village Council runs within the entire society and thus is within the domain of public law, especially when it involves punishment like banishment and ex-communication — Such bodies are amenable to writ jurisdiction under Article 226 of the Constitution of India\n— Even if the Village Council is not a government or statutory authority, because of their pervasive and monopolistic control over the villagers with regulatory power under the village areas and discharge of public functions and duties, these bodies are amenable to writ jurisdiction — Fundamental Rights — Freedom of movement — Article 19(1)(d) read with Article 21 of the Constitution of India — Banishment from the village for 11 years and ex-communication from the village — Held, violative of Article 19(1)(d) read with Article 21 of the Constitution — Right to privacy recognized and declared to be a fundamental right and part of Article 21 of the Constitution — Restricted view expressed in Kharak Singh (supra) about the freedom of movement as guaranteed under Article 19(1)(a) read with Article 21 may require an expansive interpretation as had been done by the minority view as expressed by Subba Rao J. in the aforesaid case — Customary Laws — Article 371A of the Constitution of India — Customary laws which have obtained the force of law are recognized and applicable and protected by a specific Constitutional safeguard provided under Article 371A — Held, Article 371A deals with applicability of Parliamentary enactments in the State of Nagaland, not with the practice or validity per se of customary laws — In the present case, not dealing with any issue involving application of any act of the Parliament dealing with customary law nor with the validity of any customary law, except for the effect it may have on the fundamental rights of the petitioner — What is in issue is about the legal/ constitutional validity of certain actions/ decisions taken by the customary body on the basis of customary laws and whether such actions/ decisions are compliant with constitutional provisions — Constitution of India, Articles 19(1)(d), 21, 371A\n
