Customary Law in Tribal Societies: Function and Relevance

Customary law, a blend of cultural practices and legal norms, plays a vital role in tribal societies around the world. In countries like India, this traditional legal system coexists with modern laws, providing unique frameworks for justice and governance. This article delves into how customary law functions in these communities, addressing issues such as family, marriage, divorce, and autonomy.

Understanding Customary Law

Customary law, a term comprising two words Custom and Law encompasses practices and traditions that resonate within specific communities. A custom can be a social practice without formal recognition, and its violation might not result in sanctions. Conversely, a law is socially recognized and its breach is punishable. When a custom evolves over time and becomes socially recognized, it can morph into customary law.

Function of Customary Law in Tribal Societies

Customary law operates similarly to modern legal frameworks in several aspects. It delineates expected norms and behaviors, and any deviation from these norms can invite social sanctions. However, customary laws are often:

Oral in nature Diverse and applicable to a range of situations Specific to the community in question

Many countries today have recognized customary laws within their legal systems, provided the laws align with principles of natural justice, morality, and public policy. For instance, numerous African countries acknowledge customary law under certain conditions.

Context in India

India is home to over 100 million tribal people spread across different states and dependent on natural resources like forests. These tribes reside primarily in two regions: the northeastern states and central/southern highlands. While northeastern tribes are often isolated, those in peninsular India may coexist with non-tribal populations.

One of the main challenges is recognizing the tribes' right to autonomy and their right to seek justice within their traditional or customary laws. They also have a legitimate claim to own and utilize natural resources in their habitat. Despite this, many tribal communities were only recently integrated into decentralized administration, thanks to the Panchayat Extension to Scheduled Areas (PESA) Act of 1996.

PESA aimed to authorize local governments elected by tribal communities to manage certain political, administrative, and financial powers. However, a decade after its implementation, it became clear that PESA had not achieved its goals. Instead, it fueled more conflicts due to state authorities' reluctance to cede power and internal political tensions. This has led to violent reassertions of tribal rights in some areas.

The Fifth Schedule, which governed tribal affairs before PESA, had a centralized system where communities, predominantly tribal, were directed by provincial governors. The Schedule granted governors the authority to make regulations for peace and good governance in Scheduled Areas, essentially giving them full legislative powers.

Challenges and Conflicts

The imposition of governor's authority has often led to significant conflicts between tribal communities and state authorities. This has contributed to the growth of movements like Naxalites, which thrive in these conflict zones. Additionally, there is exploitation of mineral resources by state authorities, which drives tribes out of their natural habitats.

The role of customary law in these situations is crucial. It provides a framework for resolving disputes and maintaining social harmony, often more effectively than modern legal systems. For instance, custom dictates the ways in which tribal families are formed, married, and divorced. Traditional practices vary widely from region to region, but they all aim to maintain social cohesion and enforce behavioral norms.

Conclusion

Customary law is more than just a traditional practice; it is a vital component of maintaining social order and justice in tribal societies. While it faces challenges, particularly in regions like India, it continues to play a significant role in governing and resolving conflicts within tribal communities. Recognizing and integrating customary law into modern legal frameworks could help ease tensions and promote more inclusive governance.