On September 7, the Meghalaya cabinet approved the implementation of the Code of Criminal Procedure and the Code of Civil Procedure in tribal areas of the state.
This has caused alarm as such areas are covered by protections under the Sixth Schedule of the Constitution. The provision enables decentralised governance and a large degree of autonomy in the tribal areas of Assam, Meghalaya, Mizoram and Tripura. Customary laws prevail in areas under the Sixth Schedule.
Meghalaya has three autonomous district councils with elected representatives set up under the Sixth Schedule – one each in the Khasi, Garo and Jaintia Hills. These bodies are empowered to set up district council courts which may settle a range of disputes under customary laws.
Autonomous district councils as well as civil society bodies objected to the government’s notification as they feared it would “dilute the power of district council courts”
“This is a Constitutional matter and we derive power from the Constitution,” said Titosstarwell Chyne, chief executive member – or head – of the Khasi Hills Autonomous District Council. “They [the state government] can’t take away our power. Paragraphs 4 and 5 under the Sixth Schedule of the Constitution say that the imposition of CrPC and CPC should be excluded from tribal areas.”
On September 21, the Khasi Hills Autonomous District Council and the heads of various traditional bodies passed a resolution asking the government to issue a separate notification saying the district council courts would be left out of the purview of the criminal and civil procedure codes.
Representatives of the three autonomous district councils had met Meghalaya Chief Minister Conrad K Sangma on August 30 to voice their concerns.
As the cabinet cleared the notification on September 7, Sangma claimed it was only after “detailed consultation” with the autonomous councils and “clarifying” their doubts about the matter. He added that it did not infringe on the powers of the district council courts and was only meant to “regularise” the overall functioning of the judiciary.
The notification, issued in the governor’s name, said that the district council courts would continue to derive powers from Paragraphs 4 and 5 of the Sixth Schedule.
These detail the powers of the autonomous councils to set up courts at three levels – village courts, subordinate and additional subordinate district council courts as well as the district and additional district council court. Judges and judicial magistrates dispense justice in the district council courts, which are under the supervision of the high court.
However, there are certain limits to the powers of the district council courts. Meghalaya advocate general Amit Kumar pointed out they can only rule on matters where both parties belong to a tribal community and the same district council area. Moreover, their jurisdiction does not extend to offences punishable by death, life sentences or over five years’ imprisonment.
The recent order also referred to three sets of rules introduced by the colonial administration in 1937. These rules dealt with “the administration of justice and police” in the Khasi, Jaintia and Garo Hills. They established a dual police system, where the regular police force coexists with a rural police consisting of customary posts. They conferred certain judicial powers on the deputy commissioner. The rules were somewhat ambiguous about the application of the civil and criminal procedure codes – they said the executive courts functioned according to the “spirit” of these codes if not the “letter”.
From 2013, the government started winding up executive courts to ensure the “separation of the judiciary”, Kumar explained. District sessions courts started being established in tribal areas to try cases that fell outside the purview of the traditional courts. Before the recent order, the government invoked the 1937 rules to confer power on these sessions courts, said Kumar.
The recent order clarified that all actions taken by the regular district courts shall be deemed to have been under the civil and criminal procedure codes. It added that these measures followed the principle of “full separation of judiciary from the executive”.
Instead of the 1937 rules, Kumar explained, the district sessions courts in 11 tribal districts would now “derive their source of power from CrPC”. “We have not touched the district council courts,” he claimed.
‘Our courts will be closed’
Autonomous district council members – especially in the Khasi Hills – are not convinced. Should the criminal and civil codes of procedure be applied to district council areas, Chyne feared, the regular district sessions courts would also start trying “cases between tribal and tribal”.
“If the district sessions court gets power then who will go to district council courts again?” he asked. “No one will refer or send cases to our court. Automatically, our courts will be closed.”
According to Roy Kupar Synrem, general secretary of the Hynniewtrep Youth Council, an influential civil society group, the notification would lead to a conflict between the customary laws followed by the district councils and the provisions of the criminal and civil codes of procedure.
“If both [district and session courts as well as district council courts] are the creation of the same Constitution, then is it not a duty of a lawmaker to make sure that there is no conflict between the two types of courts? What is the real motive behind all this?” he asked.
An indignant Synrem demanded: “Is he [Sangma] trying to systematically weaken our traditional institutions by taking away the power and functions of the judicial authority prevailing for thousands and thousands of years?”
He pointed to Supreme Court and Meghalaya High Court judgments which upheld the power of district council courts to try criminal cases according to customary laws in areas under their jurisdiction and when all parties belonged to tribal communities. He felt the jurisdiction of the district council courts in criminal matters was now threatened.
Scope of the order
Anthropologist Nandini Ramachandran said it was not yet clear if the order would curtail the powers of the traditional courts. “The government hasn’t fully clarified if the codes will bind all courts in Meghalaya or only the regular courts,” she said.
Lawyer Bindo Lanong, a long-time member of the Khasi Hills Autonomous District Council, asserted that the council courts were not bound by the notification.
“Strictly speaking, we are not bound by the government notification because we go by the provision of the Constitution of India [the Sixth Schedule],” he said. “How can the notification of the government take precedence over the provision of the Constitution? The state government is trying to intrude and encroach on the district council courts and that’s why we oppose the notification.”
As Ramachandran has written in an article for fiftytwo.in, the different judicial systems, the overlapping of the executive and the judiciary in tribal areas had often led to chaos and failed to make justice more accessible.
Several lawyers are also in favour of the new changes. The Meghalaya government notification is not without precedence. Guwahati high court advocate Jayanta Chutiya pointed out that the Criminal and Civil Codes of Procedure had been applicable to Sixth Schedule areas in Assam since 2013.
“They [the Khasi Hills Autonomous District Council] allege it will curtail the powers of the traditional courts and the KHADC but there is no real reason it ought to do that,” he said.
According to Meghalaya High Court advocate Farid Qureshi, even the Sixth Schedule does not explicitly say whether the Criminal or Civil Procedure Codes should be applied to areas covered by the special provision. The 1937 rules, however, did make these codes applicable “in spirit”. These were “old rules”, he felt, which should be replaced by the authority of the criminal and civil procedure codes.
“It will be good for the people and they will get justice in accordance with the law. Otherwise, the judges will act as per the whims and fancies,” Qureshi said.