Custom as primary source of Law in a democracy

By Aristotle Lyngdoh

In a layman’s understanding, parliaments and legislatures are institutions where laws originated in a modern democracy. Even political science too teaches that custom, usage, court decisions and statutes are important sources of law. But as a matter of principle all laws has their own logical sources of origin which serve as the basis in law-making, to establish profound jurisprudence. Notwithstanding anything and apart from being the oldest form of law-making, custom still plays a vital role as the primary source for social and civil laws in the country, except in a dictatorship where the wishes and dictates of a dictator becomes the law of the land. Therefore, the Constitution of India defines ‘law’ to include custom or usage having in the territory of India the force of law (Article 13). Further, the Courts too have recognized custom as law only if the custom is ancient or immemorial in origin, reasonable in nature and continuous in use (sources the law library).

For custom to have the force of law it is also subjected to judicial tests. Allen, Paton, Salmond and all other jurists are of the views that before custom can be have validity in law it must be shown that the custom is of immemorial antiquity or origin. Besides, ancient and immemorial, custom should also be moral in nature. Why should custom constitute the primary element as far as social law is concerned? The reason is purely because of the fact that the conscience of a law maker while proposing a law, or, a judge while making a judgment relies upon certain facts or evidences that have been in existence for quite a long period of time. And if we look at most of the laws that are in operation in our country, they are mostly inherited from the British legal system and also from the customs that have been practiced by the people. And not only India, but other democracies of the world too have borrowed certain legal principles either from the British or other European nations, except in Muslim countries where the Koran is primarily the principal sources of law. However, the fact still remain that the basic tenets of these premier laws too were found to have originated from the custom and usage that have been practised in these nations during the Middle Ages or earlier. It is perhaps for these reasons that the British enacted the Indian penal Code in the 1860s to supersede most of Muhammadan Laws that are better in nature but retained certain custom of the indigenous community. Similarly in the Khasi and Jaintia hills region, the colonial rulers did not interfere much with the system and patterns of customary practices of the indigenous administration in civil and social life. The reason that satisfied the colonial rulers at that time about the system of governance in the Hills region was perhaps the democratic nature exhibited by these indigenous laws.

Based on this same principle and with deep sense of understanding of the democratic traits embodied in the practice of these indigenous tribes, the Constituent Assembly of the Indian Constitution too without any hesitation adopted the Sixth Schedule of the Constitution exclusively for this purpose. It is therefore expedient on the entire Khasi – Jaintia community that the long practiced custom of matrilineality and other forms of democratic governance should remain the primary source while enacting any Bill and Laws for the society. With regards to the present impasse due to the passing of the Khasi Custom & Lineage Second Amendment Bill 2018 by the KHADC, I strongly believe that the scope for consensus on the issue lies in the clear definition of ‘Customs’ that have been practiced by the Khasis since time immemorial which are so far not yet part and parcel of the Principal Act or the proposed Amendment Bill. Once the definition on ‘Custom’ is clearly defined, then there is no question for any confusion and misunderstanding from any quarter.

Subsequently, upon successful incorporation of the definition of ‘Customs’ practiced by the Khasis, it then becomes a factual statute which should be accepted by everyone. However, this truth can either be bitter or sweet and will entirely depend on the nature and situation faced by the affected parties. Thus, the idea and concept of barring anyone from marrying a person of their choice will not be the criteria for passing judgement. On the contrary, the action of disqualifying or depriving any person from benefits and privileges of a particular community should be strictly on the grounds of whether that particular ‘custom’ is appropriated or not or voluntary renounced by the individual. In the Khasi Lineage system ‘Custom’ means a practice in marriage involving two different ‘kur’ or clans where a Khasi man of a particular ‘kur’ or clan enters into a marriage relationship or marries a Khasi woman from different ‘kur’ or clan not related to one another in the pattern of a matrilineal system thereby propagating the ‘kur’ or clan of the female counterpart. This has been the long standing practice of the Khasi-Pnar community till date. But in the absence of a clear definition about custom in the codification process, any person can interpret custom according to his/her own version which is contradictory in nature.

The argument in favour of the Second Amendment Bill of the KHADC that a Bill or Act can prevent the spread of diseases or to that extent prevent children from going against the parent’s will hold no water. In fact the efficiency of families on raising their own kids or how a person should behave with his own life and health are purely private matters and. As far as custom and lineage is concerned, the KHADC should restrict itself on the scope of protecting customs and traditions which are consistent with the provisions of the Constitution rather than infringing on certain civil rights of the citizens or else it will dilute the essence of the Sixth Schedule of the Constitution.

In conclusion, let me illustrate the difference between customs and lineage versus marriage by the simple analogy of a Khasi Christian. It makes sense to say that a Khasi who embraced Christianity no longer practices the custom of Khasi indigenous faith rather than saying that he/she has lost the Khasi status. Similarly, a Khasi who marries a non-Khasi by his/her choice under civil liberty has also voluntarily renounced the custom or tradition of marriage involving two ‘kur’ or clans but is a Khasi by origin. Finally, if the KHADC wishes to deter and discourage cross-cultural marriage which is also a threat to a minority community, it should have adopted different alternatives that would evoke peoples’ empathy and emotions toward their own community. And as for the idea of incorporation of Khasi Language into the Eighth Schedule of the Constitution, then the number of people speaking this regional Khasi language should increase substantially.

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