The purpose of codification of customary practices is to ensure that those practices that have traditionally been helpful and ensured social justice are upheld and carried forward in a more robust manner, through the force of law. The question that arises then is what is customary law? Jurists maintain that customary law encapsulates the norms, traditions and rules of behaviour of a people, or a particular ethnic group/community. Customary laws capture the worldview, beliefs, philosophies and value systems of the people and are passed on from one generation to the next. In traditional societies, customary laws are largely unchallenged. In case of property litigation etc., even the formal legal systems adopt the route of customary laws to pronounce their verdicts. In India we have inherited and adopted English jurisprudence which often is at odds with tribal customary laws. This is not to say that customary laws are intrinsically just and more enlightened than the formal justice system. On the contrary, customary laws are arbitrary, often socially unjust and have led even to the privatisation of the commons when such laws are meant to exercise a sort of custodianship over community resources. In fact, customary laws have more to do with the custodianship of community ownership rights and to an extent also the custodian of tribal identity.
Recently the Garo Hills District Council hastily passed the Garo Customary Laws Act without public consultation. That an important legislation with long term impacts is sought to be rushed through by the GHADC presupposes that the intent is wrong. Naturally, the Act has raised the hackles of a cross section of Garo society with concerned citizens alleging that the Bill is regressive and undemocratic and lacks societal sanction. They felt that the codification of practices, customs and traditions of the Garos is different from the enactment and enforcement of laws. People have the right to ask whether the standard requirements for the validity and enforcement of customary laws have been discussed critically and whether the capacity of customary law to produce both legal and social justice has been duly evaluated. The problem of codifying a customary practice is that it remains etched in stone even while society is a non-static entity and subject to constant change. People in every society adapt to those changes when they find it suitable to the pursuit of their lives and livelihoods. In the case of the hurriedly passed law by the GHADC, it appears that the attempt is to define who an A’chik (Garo) is from a ‘purist’ standpoint ostensibly to protect Garo identity. Whether such exclusive definitions are in sync with modern Garo society is a subject of a raging debate.