Moa Jamir
The Gauhati High Court’s Kohima Bench ruling of October 27 against excommunication by customary institutions in Nagaland raises a question that extends beyond one village dispute: how can a society preserve collective traditions without compromising individual rights? By quashing four communications issued by the Yaongyimsen Putu Menden and Yaongyimsen Senso Mungdang.
The ruling underscored that customary authority, while integral to Naga society, remains subject to judicial scrutiny where its exercise violates fundamental rights. It also distinguished the traditional customary institutions such as Putu Menden from the statutory Village Council under the Nagaland Village and Area Councils Act, 1978, clarifying their distinct legal status and the question of their amenability to judicial review.
The significance of the judgment lies in clarifying how customary institutions can continue to uphold their traditions while respecting the constitutional rights of individuals. Custom remains integral to Naga identity, community organisation and dispute resolution. Article 371A provides constitutional protection in specified matters concerning Naga customary law and social practices. Yet such protection cannot be read as blanket immunity for every action taken in the name of tradition. A practice’s customary origin does not, by itself, settle whether its exercise is compatible with fundamental rights.
Nor is this an isolated legal intervention. Among others, in Mangyang Lima v. State of Nagaland (2019), T. Chalukumba Ao v. State of Nagaland (2024) and K. Tia Longkumer v. State of Nagaland and five others (2026), the Kohima Bench had examined the legality of banishment and excommunication in relation to individual rights and constitutional provisions, among other issues.
The central challenge is balancing collective interests with individual liberty. Community cohesion, shared responsibility and customary mechanisms of governance are public goods that deserve protection. But can these goods justify overriding the rights of a dissenting individual? A utilitarian argument may appear persuasive when community harmony is invoked. However, collective welfare cannot become an unlimited justification for exclusion, particularly when fundamental human rights are at stake or when sanctions affect others who had no part in the original disagreement.
Dissent is not necessarily an obstacle to community life. It can expose arbitrary decisions, test the fairness of established practices and encourage institutions to adapt. A customary framework that accommodates disagreement and provides fair procedures may be more resilient than one that treats dissent as disloyalty. The question, therefore, is not whether customary institutions should exist, but whether the exercise of their authority sufficiently safeguards and accommodates those who disagree with them.
Further, a pertinent question also arises: if constitutional protection becomes meaningful only after a prolonged court battle, what remedy exists for those who cannot afford litigation or are too vulnerable to pursue it? For many, approaching a court of law presents practical difficulties, as it requires resources, legal assistance, time and considerable personal resolve.
This makes legal awareness, public education and the dissemination of accessible information on customary institutions, statutory powers, fundamental rights and available remedies imperative. The government, legal services authorities and civil society all have a role to play. Greater understanding may prevent disputes from escalating and help customary processes operate within constitutional boundaries.
Similar tensions can arise when customary practices intersect with statutory frameworks governing children, including the Juvenile Justice Act and the Protection of Children from Sexual Offences (POCSO) Act. These interactions require careful, case-specific consideration rather than a presumption that either custom or statute should automatically settle every question.
Nagaland’s social fabric is complex, and customary institutions and practices remain integral to its identity, solidarity and local governance. Their legitimacy is strengthened, not weakened, when individual rights are accommodated within collective life. The litmus test is finding a framework that protects the community without silencing dissent.
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