While the debate on the Uniform Civil Code has once again been centred around whether religious minorities can continue following their respective personal laws, any framework for the UCC — which is to govern aspects of marriage, divorce, child custody, and inheritance — is bound to run into conflict with the customary laws and practices of a varied number of tribal communities as well.
Even as Islamic bodies, which have codified personal law, have opposed the proposal to bring in the UCC, tribal bodies in states like Jharkhand, Meghalaya and Nagaland have taken a similar position, insisting that it would infringe upon their customary laws of marriage, divorce, inheritance, and transfer of land.
Mobilising opposition
Fulchand Tirkey of the Kendriya Sarna Samiti, an Adivasi body in Jharkhand, said, “Our tribal customs do not grant women the right to inherit property. We have no system of dowry. If any form of UCC comes into play, the property ownership will be affected and then women will also be able to claim dowry harassment, which might lead to more complex problems in the tribal villages.”
Mr. Tirkey added that a meeting in Ranchi had already been held to discuss ways of mobilising the opposition to the UCC. “We are now discussing how to plan protests and demonstrations against the UCC and this will become clear in the coming weeks,” he said.
Tribal poll plank
In addition to this, sub-tribes within larger tribal groups tend to have their own set of separate customary laws for marriage, divorce and child custody, prompting tribal activists to say that any attempt to bring uniformity in civil procedure will, by default, trigger opposition from one tribe or the other.
Alok Shukla, a prominent tribal activist based in Chhattisgarh, said, “There is already a separate tribal platform being formed for the upcoming State elections. And given the noise around UCC currently, opposition to it is bound to become a key poll plank for tribal bodies looking to contest elections.”
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Constitutional protection
There are more than 700 recognised tribes in India, all of whom have their own set of customary laws and practices governing aspects of civil and sometimes criminal disputes. And while uncodified, in several tribal-dominated States, these are protected by the Constitution, under the Sixth Schedule, in Articles 371A through 371I, or have been recognised through judicial decisions.
For instance, Article 371A of the Constitution mandates that no Act of Parliament shall be applicable to Nagaland with respect to the “religious or social practices of the Nagas, Naga customary law and procedure, administration of civil and criminal justice involving decisions according to Naga customary law, and ownership and transfer of land and its resources”, unless allowed by the legislature of the State. A similar provision is enshrined for the state of Mizoram as well, in Article 371G.
Furthermore, as per the Sixth Schedule, District Councils and Regional Councils (essentially, the executive) have the right to adjudicate on a varied set of civil and criminal procedures based on their customary laws and practices.
Judicial precedents
The 21st Law Commission has also noted this in a 2018 consultative paper on the reform of family law, pointing out that several tribes in States like Nagaland, Assam, and Meghalaya had vehemently protested the idea of a UCC because of this.
Similarly, judicial precedents have recognised customary laws around inheritance of land for tribes such as the Santhal and Oraon. In one such case relating to a property dispute within a Santhal family, the Jharkhand High Court had in 2018 recognised the Santhal Pargana custom of according the status of adoptive sons to the husbands of three women, who were married under the “ghar-jamai” system, thereby letting the women inherit their father’s property through their respective husbands.
