Article 371A Doesn't Protect Naga Customs Violating Fundamental Rights: Gauhati High Court Quashes Villagers' Excommunication

The Gauhati High Court has held that traditional village institutions cannot invoke customary laws to socially ostracise individuals and their families or impose restrictions affecting their movement and identity in violation of fundamental rights.

The High Court observed that constitutional protection granted to Naga customary laws under Article 371A does not confer unrestricted power on traditional institutions to impose sanctions in the name of preserving customs and traditions.

Justice Yarenjungla Longkumer set aside the excommunication orders issued by the Yaongyimsen Putu Menden and the Yaongyimsen Senso Mungdang against 38 petitioners and their families.

The dispute arose over the year of establishment of the Chumoukedima Yaongyimsen Union. While one group claimed that the Union was established in 1989, another maintained that its establishment should be recognised as 2001.

Following disagreements over the issue, Yaongyimsen Senso Mungdang passed a resolution in November 2024 excommunicating the petitioners and their families from the village. The decision barred them from entering the village, using the name Yaongyimsen in official documents and having marital ties with other villagers. Other villagers were also prohibited from assisting the affected families during deaths or celebrations.

Challenging the decision, petitioners argued that their fundamental rights under Articles 14, 19 and 21 of the Constitution had been violated. They contended that customary practices could not override constitutional rights. The State Government also opposed the excommunication and submitted that it infringed the fundamental rights of families.

Rejecting the objection to the maintainability of the petition, the Court held that even private customary institutions could be subjected to writ jurisdiction under Article 226 if their functions and actions had a public law element.

“This Court is also of the view that a writ petition under Article 226 of the Constitution of India can be maintained against a private institution/association even if it does not qualify as a “State” under Article 12”

High Court observed that the Putu Menden and the Senso Mungdang exercised pervasive control over the villagers and that their decisions had consequences beyond a purely private association.

The Court held:

"The decisive question is whether the private association/institution performs a public duty or public function and whether the impugned action has a public law element or whether the duty sought to be enforced is otherwise enforceable through a writ."

The Court further observed that although Article 371A protects Naga customary laws and practices, such protection does not place them beyond constitutional scrutiny.

The High Court Observed:

"The Constitutional protection cannot be considered as conferring an unrestricted power to oppose any form of sanction in the name of tradition. It is settled law that when a custom or usage has the force of law, Article 13 renders such laws void to the extent of inconsistency with Part III.

The Court also held that Article 29 or Article 371A cannot be read as a blanket exclusion of judicial review over customary practices. It observed:

"The impugned customary orders have to be tested against the fundamental rights. Article 13 expressly covers customs and usages having a force of law."

Applying these principles, High Court noted that the excommunication affected not only the petitioners but also their wives and children who had no connection with the dispute. It further observed that the restrictions affected their village identity and freedom of movement.

The High Court held that the excommunication and restrictions imposed by the customary bodies violated Articles 14, 19 and 21 of the Constitution. Accordingly, it quashed the impugned orders and related announcements.

Counsel for Petitioners: Imti Longjem and Catherine Anichar.

Counsel for Respondents: T.B. Jamir and I. Jamir for Respondents 1 and 2; I. Imsong, Additional Advocate General, and Mosemsa Longkumer, Government Advocate, for the State respondents; I. Apok Pongener for Respondent 7.