Custom and Law

267

The recent lynching of a couple at Sora village in the Thoubal district by locals of the village for their alleged involvement in the crime of a treacherous murder brings to fore once again the sensitive nature of the practice of customary law. While customary laws should not be trifled and dismissed, this incident and so many others before it must make everybody acknowledge that there are drawbacks in giving free rein to them. There could be no two ways about it that for them to become universally acceptable, they would have to be moderated by an understanding of modern system of jurisprudence. Otherwise, in many of the areas of adjudication, it can spell a return to plain and raw atavism. This is not just in the case of Manipur or the Northeast. Look at the ghastly practice of honour killing in North India, and those of us who have been following the news on this front would remember, there are still very “modern” citizen of this largest republic in the world, who believe there is nothing wrong in this practice.
The trouble with customary law is not just about some of its very primitive idea of justice, informed by the often repeated “an eye for an eye” principle, but also about its lack of universality. That is to say, customary laws on many subjects will vary racially and even oppose to each other from one customary community to another. In a place like Manipur, were there are 34 recognized tribes and some more traditional communities, this could result in total anarchy in many of the areas of adjudication. Particularly horrible would be in matters that are seen as deserving severe penalties, including capital punishment. The Sora case and the public furore over it is the latest example, but there have been more such cases which nearly sparked off communal riots in the past. The killing of an SDO and two of his subordinate staff was just another highlight of what can happen if customary notions of justice are given free leash. Again, even if there are no dangers of intercommunity differences, the moot point is, should penalties awarded under customary laws that transgress certain universal notions of non-negotiable rights be made acceptable. Decades ago, there has been a very bad precedent set in another part of Indian in what has come to be known as the Shah Bano Case, in which legal sanction was given to a clause in the Muslim Personal Law that clearly discriminated against divorced women. It demonstrated before everybody how painful and retrogressive such tolerance can get.
Arguably, customary laws as they are, cannot be given total sanction to become admissible law. But since they are important in preventing the law from becoming purely a mechanical system by infusing in them various nuances of how different communities see justice and how indeed justice have been administered within these communities through the ages, they must not be altogether rejected either. The resort to the notion of jus cogens or peremptory laws which cannot and must not ever be transgressed is relevant. If any law made by any government or institution is to remain legitimate in the eye of international norms of jurisprudence this should be the guiding principle in the effort to incorporate customary law into constitutional law. Hence, if a customary law of any community decides for slavery was an accepted practice in their past so should be revived, the jus cogen principle should be made to automatically nullify it.
This being the case, in the aftermath of the lynching of the couple at Sora, the government needs to answer certain very important questions. This is important for this is not the first time such an atrocious disregard of the law has been allowed. Has the Manipur government officially allowed any provision for incorporating customary law in its practice of governance? It yes, should not it explain? If not, then the question that follows is, what has it done to rectify things after each of these atrocities? More importantly, what does it intend to do in the Sora case? Is it simply going to say this is merely the handiwork of a mob and thereby the law cannot be applied? We are apprehensive this last resort would be reality yet again. But the wider apprehension is, although not official, the government has been and would continue to excuse extreme transgressions of the law by motivated mobs in the unwritten understanding that these were a practised traditional jurisprudence once.

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