As pointed out by Justice M.Hidayatullah, former Chief Justice of India, in his lectures in November 1978, during the Gauhati High Court Silver Jubilee celebration, "Ignoring history has led to some errors in the approach of the Courts" as such in the present case a trip down the memory lane of the history of legal advancement in India and its impact in Naga Hills is deem appropriate at this juncture.
In India, the advancement of modern legal systems began with Lord North's Regulating Act of 1774, which established Governor- Generalship of four Councillors at Calcutta, with Warren Hasting as the first Governor General. The Governor General was authorised to make rules, ordinances and regulations for the good order and civil government of Bengal. Both Legislative and Administrative powers were exercised by him and slowly controlled even Bombay and Madras, and by 1833 the Legislative power of Bombay and Madras were taken away. Three principles emerged in this systems:-
- Concentration of authority at the centre.
- Executive control over Legislature.
- Absolute responsibility of Parliament.
By 1858, even the East India Company transfer its power to the Crown, and by 1891 election came and restored the legislative power to Bomaby and Madras, but this election was in name only, and it was rather a selection by few local bodies, and this practise continued till Lord Minto-Morley Reforms of 1909 and carried on to Lord Montagu Chelmsford Reforms in 1919 resulting in Dyarchy in the provincial sphere. This Dyarchy was abolished by the Government of India Act of 1935, and it continued till the Indian Independence Act of 1947.
After taking control of Bombay and Madras, the Governor General extends its power to Assam, which also includes the backward tribes, and when election came millions of backward tribes were represented by a welsh missionary. Under the Schedule District Act of 1874, Assam province was established and Governor General legislates in this province in summary manner with simple law making process. Drafts proposed by Lieutenant Governor or Chief Commissioner were placed before the Governor General, and if he approved them and gazetted the rules or draft, they became Law. The Schedule District Act of 1874, was repealed by Government of India act of 1919 but inserted section 52A and 52B.
Section 52A (1):
"The Governor General in Council may declare any territory in British India to be a backward tract and may by notification with such sanction direct that this act shall apply to that territory with such modification or exception as may be prescribed in the notification. He may also direct that any act of the Indian legislature shall not t modification or exception as may be prescribed as he thinks fit or may authorise Governor in council to give similar directions as respect any Act of the Local Legislature".
That section 52B is not relevant for the present discussions. The term backward tract continued in place of the schedule district till it was replaced with excluded area. The detailed account of backward tract can be found in the report of Indian Statutory Commission Vol-1 of 1930. Para 74 :
"Nowhere in India is the contrast between the life and outlook of these wild hillmen and the totally distinct civilization of the plains more manifest" A list of Excluded Areas were:-
- The North East Frontier (Sadiya, Balipara, and Lakhimpur Tracts.)
- The Naga Hills
- The Lushai Hills
- The North Cachar Hills and sub division of Cachar District
Partially excluded Areas:-
- The Garo Hills
- The Mikir Hills (In Nowgong and Sibsagar Districts)
- The British portion of Khasi and Jaintia Hills District, other than Shillong Municipality and Cantonment.
Having control all these provinces extending from Calcutta, Bombay, Madras and Assam, it also promulgate from Fort William Calcutta, Laws such as The Presidency Small Cause Courts Act 1882, The Provincials Small Cause Courts Act 1887 and the Bengal, Agra and Assam Civil courts Act 1887, which was never enforce in Naga Hills, rather Bengal Eastern Frontier Regulations of 1873 was enacted by the Governor General for the Peace and government of the said district.
By the Indian Adaption of Laws Order 1937, the Schedule District Act of 1874 was omitted, but the Administration of Justice and Police Rules 1937 continued in the Naga Hills framed under Rule 22, by virtue of Section 5 and 5A of the Schedule District Act of 1874, which continued till the Indian Independence Act of 1947, and by adoption of Indian Constitution of 1950, Nagaland became the 16th State within the union of India by an agreement by executing the State of Nagaland Act 1962 inserting Article 371A, in the Constitution of India.
The Presidency Small Cause Courts Act 1882, The Provincials Small Cause Courts Act 1887 and the Bengal, Agra and Assam Civil courts Act 1887 were well established in the rest of India except the Naga Hills, which were on war footing with the British, and the colonist enacted the Bengal Eastern Frontier Regulations of 1873, mainly to protect the lowlands. While in the northern parts of Naga Hills, the American and Welsh missionaries were influencing the Naga ways of life through conversion to Christianity, on the southern Naga Hills villages like Kezoma, Mezoma and Khonoma, there was strong violent resistance against the Britishers, but Naga resistance of British intrusion into her soil came to an end and by 1881, and British Administration started in Naga Hills, without disturbing the internal matters of the Naga people, with its Capital as Kohima, which continued till the Indian Independence in 1947 and the adoption of Indian constitution of 1950, which heralded another bloody chapter in the history of Naga people.
Thus, it can be seen that, right from the British rule till Indian Independence, in Nagaland the application of Laws was unique from the rest of the Country, which can be seen from the Bengal Eastern Frontier Regulations of 1873, Schedule District Act of 1874, Administration of justice and Police Rule1937, Section 1 of the Criminal Procedure Code, which was expounded both by the Gauhati High Court from 1940s to 1950s and by the Supreme Court in State of Nagaland Vs Ratan Singh in 1966, followed by Nagaland Government Notification of 1988, with regard to application of Criminal Procedure Code and Civil Procedure Code in Nagaland, which was again recently expounded by the Hon'ble Gauhati High Court in 2013, in a landmark judgment of, The Registrar General Gauhati High Court Vs Union of India.
From this it emerged that separation of Judiciary from the Executive in 2006 alone is not the end of all, and we also have to consider the existence of two tiers District Judiciary in Nagaland, that is the Customary Court in the District without pecuniary limitation while District Judicial officer have been imposed with pecuniary jurisdictions etc.
Government of Nagaland also has to decide how the Judiciary will functions in Nagaland without proper Judicial Officer organization in the district and infrastructures and the court staff, without which Justice will be the casualty and the judicial Officer the victims of circumstances and its environment.
In Sri Ram Saran Kashyap vs The King 1950, the Gauhati High Court held that the following principles were illustrated prevailing in Nagaland.
(a) Only verbal order or notice shall be requisite, except When the regular police are employed or the person concerned is not resident or in the district at the time; or, if in the district, but resident beyond it, where his place of abode is not known. The order shall be made known to the person affected or to some adult member of his family, or proclaimed at the place ha was last known to \m at, in sufficient tima to allow him, if he see fit, to appear.
(b) A note of the substance of all the proceedings in cases tried before them must be kept by the Deputy Commissioner and his Assistants as required by Section 264t Criminal P.C. In cases requiring a sentence exceeding three years, a full note of the evidence and proceedings must be kept. Examinations and proceedings shall generally be recorded in English only.
(c) The proceedings of the Maussadars, gaonburas, Chiefs, headmen of khela or other duly recognised village authorities need not be in writing.
(d) All fines levied by the mauzadars, gaonburas, Chiefs, headmen of khels, or other duly recognised village authorities shall be paid to the Deputy Commissioner or his Assistants or other officer empowered to receive them, within eight days from the date of realisation, unless they are immediately paid to the aggrieved party as compensation.
(e) It shall be discretionary to examine witnesses on oath in any form, or to warn them that they are liable to the punishment for perjury if they state that which they know to be false.
(f) No pleader shall be allowed to appear in any case except with the special permission of the Deputy Commissioner. The term 'pleader' includes 'mukhtar' or any other professional agent recognised by the Court. Such permission shall always be granted when the application is to appear on behalf of a person accused of murder. For the defences of paupers accused of murder, Rules 19 to 21 of the Assam Law Department Manual, Part II, Criminal Rules, shall be followed mutatis mutandis.
In Registrar General Gauhati High Court Vs Union of India 2013, the Honble Gauhati High Court held:-
The Nagaland Judicial Service Rules, 2006 have been promulgated almost simultaneously with the Arunachal Pradesh Judicial Service Rules and judicial officers have since been appointed to man the courts. The Civil Courts Act has to be held applicable to the State of Nagaland also on the same analogy. (18) Only further question which survives for consideration is whether in trial of cases by the Courts manned by the members of Nagaland Judicial Service, CrPC and CPC will apply though the said Codes have not been expressly extended as has been done under the 2009 Acts in the State of Assam and under notification dated 24.10.2011 in the State of Arunachal Pradesh and by a separate enactment in the State of Mizoram. Proviso to Section 1(2) of the CrPC reads as follows:-
"Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply --- (a) to the State of Nagaland, (b) to the tribal areas. but the concerned State Government may, by notification, apply such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications, as may be specified in the notification."
Proviso to Section 1(3) of the CPC reads as follows: "Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be with such supplemental, incidental or consequential modifications as may be specified in the notification."
(19) Learned Amicus submitted that exclusion of CrPC from the State of Nagaland and other tribal areas under proviso to Section 1(2) and of CPC under proviso to Section 1(3) thereof is only applicable to village councils/ courts or the customary courts or authorities exercising judicial powers under the administration of justice rules and not regular courts manned by members of Nagaland Judicial Service taken to have been constituted under the Civil Courts Act. The 2009 Acts expressly clarify what is otherwise implicit. He submitted that the above provisos have to be given purposive interpretation and not literal interpretation, to avoid absurdity. Since two interpretations are possible-one to read the proviso as applicable only to customary courts or courts presided over by executive officers under the administration of justice rules as well as to regular courts manned by judicial officers and the other as applicable only to the customary courts and courts presided by executive officers. Interpretation which promotes the intention of the legislature and policy of law has to be preferred.
The purpose of the proviso has to be ascertained in the historical background of the laws applicable to the State of Nagaland and other tribal areas. In State of Nagaland vs. Ratan Singh, AIR 1967 SC 212, the history of administration of justice in the State of Nagaland has been noticed. It was observed that the courts set up under the Administration of Justice Rules were manned by executive officers and such courts constituted a separate class not being at par with regular courts. Therefore, there was no violation of Articles 14 and 21 in CrPC not being applicable to the courts manned by executive officers. The legal position has undergone sea change after the said judgment. Separation of judiciary which is a directive principle under Article 50 of the Constitution has acquired the force of a mandate after the decision in KesavanandaBharati -vs-State of Kerala, AIR 1973 SC 1461, as held by the Full Bench of this Court in Subhasis Chakraborty (supra).
Accordingly, judicial services have been created and regular courts have been set up. It will be absurd to attribute intention of excluding CrPC and CPC from proceedings before regular courts in these circumstances. By such interpretation, the purpose of law will be defeated and administration of justice by regular courts will be hampered. There will be no uniformity in the procedure followed in regular courts in the State of Nagaland and other States without there being any difference in the circumstances of functioning of these courts and other courts. Purpose of law will, thus, be advanced if the bar is taken to operate only to customary or village courts other than regular courts. (20) Learned Govt. Advocate for the State of Nagaland is unable to show any difficulty in the interpretation suggested by learned Amicus. He, however, reserves leave to approach this Court for any further clarification before the next date, if so advised.
The State of Nagaland is at liberty to issue formal notification on the pattern of State of Arunachal Pradesh and other tribal states/ areas noted above or enactment on the pattern of the 2009 Act in tribal districts of Assam though legal position remains the same on due interpretation of provisos referred to above.
(21) We are conscious that under Article 371 A of the Constitution, no Act of the Parliament is to apply to (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. However, we do not see any conflict in applicability of CPC and CrPC to proceedings in respect of matters to be tried by regular courts manned by members of judicial service. (22) In Ratan Singh (supra), even after holding that the spirit and not letter of CrPC was applicable to the proceedings under Administration of Justice Rules by executive officers, it was observed: "
(36) We may, however, say that it would be better if, as soon as it is found to be expedient, all Rules are cancelled and one uniform set of Rules is made for the whole of this area………".
(23) The above observation supports the submission of learned Amicus in the changed scenario when regular courts manned by judicial officers have taken over. Unless departure becomes necessary, it is desirable that a uniform set of procedure is applicable in all the courts in similar adjoining areas, manned by trained judicial officers. This principle will also be consistent with Articles 14 and 21 of the Constitution.
Time has come for the state of Nagaland either to go back with the system of Administration of Justice and Police Rules of 1937 or with the Judicial services as envisaged under the constitution of India.
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