By K. Remruatfela, Advocate
M.A. (Public Admin.) ; LL.M (Corporate Law)
INTRODUCTION:
The Legislative history of the State of Mizoram was traced by Amitabh Roy J in. L.Biakchhunga`s case. It is believed that the people of Mizo inhabited the land of this Lushai hills at around 1700s AD. The British government on 6th September, 1895 formally declared as a part of ‘British-India States’. In the year of 1921, the Lushai Hills District was classified as ‘Backward Tract’ as per the provision of Section 52A of the Govt. of India Act. 1919. The Government of India Act. 1935 declared the Lushai Hills along with Hill District of Assam as ‘Excluded Area’ from the provincial autonomy of Assam. When India got Independence, it was annexed under the Union of India and put under the province of Assam State with having a District Council as per the provisions mentioned in Art. 242 (2) which is particularly enshrined in the VI Schedule of the Constitution.
After 20 years of having a District Council,
it was elevated as a ‘Union Territory’ in 1972.
The State attained ‘Statehood’ in February 20, 1987.
The provision related to the new State of Mizoram
was enshrined in Art. 371G of the Constitution.
At the same time, it is needless to say that though
having a Statehood, there still exist 3 District Council
within the State of Mizoram, viz. Chakma Autonomous
District Council (CADC), Lai Autonomous District Council (LADC)
and Mara Autonomous District Council (MADC).
CHIEF AND THE CHIEFDOM:
The Institution of Chieftainship emerged out of the collective of the villagers. Safety was need of the Common people from the invasion of the neighbouring villages. The Chieftainship thus originated in the physical and intellectual power of any person. It was said that during the 16th Century where the Mizos lived in Lentlang, a place somewhere in Burma side, the Hnamte clan invited Zahmuaka and his six sturdy sons to accept chieftainship of ‘Khawrua’ and ‘Tlangkhur’ village. One of the sons of Zahmuaka was Thangura whose descendants were called Sailo, who established themselves as a ruling clan over almost all the areas inhabited by the Mizo.
At once, he was hesitated but later with the encouragement of her wife, Lawmleri, he accepted the proposal. From that onwards, his descendent start ruling upon the Mizo in various villages. In the beginning, the Chief ruled over his people with kindness and sympathy. But, later when times gone, they consolidate their positions and their ruled was turn to anarchy. The Chief of the Mizo is the supreme head of the Village. He is beyond the law and his action could not be subjected. Everyone was justified in the name of Chief.
The Chief with the help of his Elder (Lal Upa) run the administration of justice, and the law was decided according to the Customary Law handed down from generations to generations. The law was uncodified and verbal. There is no a separate Court Room and the residence of Chief was automatically a Court Room. The Court is an open Court; people can see the trials of the case. The Court system is very much similar to the Lok Adalat system of today`s. Both the Plaintiff and the Defendant appear together in front of the Chief and his elder. After hearing words from both side, the Chief along with the elders used to adjudicate or pronounce the Judgment.
The Chief as the Supreme authority enjoy many rights and privileges which were as follows:
He has the right to make all his trusted sons a chief by dividing his land between his sons.
He was the rightful owner of all lands within his jurisdiction.
He was entitled for free labour from the villagers for the construction and repairing of his house.
He was entitled to ‘Fathang’ (1-3 baskets of paddy) from every household in the village at the end of every year.
Different kinds of taxes known as ‘Chhiah’ were entitled to him viz., Meat tax (Sa chhiah), Bee tax (Khuai chhiah), Salt tax (Chi chhiah), Fish tax (Sangha chhiah).
He had the right to collect additional quantities of paddy from Ramhual and Zalen (Those men of possession in the village, who were exempted from paddy tax).
He was entitled to keep a special priest called Sadawt to perform religious functions for the sake of subjects
He had the right to confiscate half of paddy from the migrated villagers without permission.
“An eye for an eye, a tooth for a tooth” was not the custom of the Mizo. Fine was the only remedy and the injured person used to get the compensation as for the remedy. But at the same time, the Chief had the power to order capital punishment. Most of the case refers to the Chief`s Court was like outraging of a Woman`s breast by a man, physical harms done be either side, theft, paddy etc. The maximum fine the Chief can imposed is Rs 40/-.The two common fines is “Salam” which is consider as the value of Rs 5/- or pig usually used for the feasts of King and another is Rs 40/- which goes to the winner of the case.
Like we seen in other State, the Mizo in the past also had a Bawi (slave) system. The bawi can be classified into three categories:
Inpuichhung Bawi: They were the one who seek refugee to the Chief on being driven out of extreme poverty and destitute.
Chemsen Bawi: They were Criminals or murderers who took shelter in the Chief`s house.
Tuklut Bawi: They were the person who wander and losing their tribes and joined the victors during the inter-clan and inter-tribal warfare.
As soon as when they enter and surrendered to the Chief, they now permanently become a slave with their descendants and need to serve for their master. But there is a condition that if they want to get free from their slavery, they need to pay around Rs 40/- or a ‘Sial’ to the Chief and only after that he himself and his family will be redeemed. The institution of Bawi was finally abolished on 29th October, 1915 by an order of Secretary of State for India, Austen Chamberland.
Like we seen in other State, the Chief was also very powerful at that time, and his law and order is more or less impossible to challenge. There is no Court of appeal and the adjudication of the Chief is final. But, there are certain exceptions where the case is reheard. Yet, it hardly happens. The Chief is very respectful and the people also very loyal to him. He maintained the society with peace & solidarity.
CHANGES OF JUDICIARY AFTER BRITISH INTERVENTION:
Before the British intervention, the Chief was the sole head of the Village, no one is above the Chief and his word is law, no other persons have a right to criticize or participate in aspects of Political and Judicial administrations. When the British annexed ‘Lushai Hills’, it was under Scheduled Districts Act of 1874. A lot of changes and modification was made especially in Judicial aspects. The exclusive jurisdiction of a Chief was taken over by the Superintendent, and the people or the aggrieved party have a new platform to appeal their grievances with matters of the decision of Chief to the Superintendent, which was the head of the Lushai Hills.
The Chiefs continue to administer justice in all civil and criminal cases except heinous offences like murder, rape, unnatural offences. The same had been directly taken cognizance by the Superintendent and his Assistants. In November,1906, the British government in exercise of the powers conferred under section 6 of the Schedule Districts Act,1874, promulgated the rules for the first time, namely “the rules for the regulation of the procedure of officers appointed to administer justice in the Lushai Hills,1906” under notification No. 12522 J Dated 29.11.1906.
As enumerated under these rules of 1906, civil and criminal justice uses to be administered ordinarily by the Superintendent and his Assistants. Wherein, a sentence of death or transportation required confirmation by the Lt. Governor under “Rules regarding sentence of Death in the Lushai Hills, 1915” whereas a sentence of imprisonment for seven years and above required confirmation by the Commissioner of the Surma Valley and Hill Districts under rule 9 of the “Administration of justice Rules,1906”.
In 1937, an important progress was made which affected the Judicial power of Superintendent of the Lushai Hills. The then Governor of Assam promulgated, by virtue of the Section 6 of the Scheduled District Act 1874 (XIV of 1874), which is popularly known as ‘Administration of Justice Rule, 1937’, which gives a new system to the Judicial Administration of Mizoram. It prescribed the revised rules (Criminal & Civil Justice) to be administered in the Lushai hills by the Superintendent and his Assistants. According to the said Rules of 1937, ‘Criminal justice should be ordinarily administered by the Deputy Commissioner and his Assistants’.
This new Judicial system curtails many powers of the Chief. It imposed certain limitations and restrictions and also gave a principle which the chief ought to follow. Some of the traditional rights of Chief which were abolished were as follows:
Right to order Capital punishment
Right to seize food stores and property of villagers, who wished to transfer their allegiances
Proprietary rights over lands, now arbitrarily reserved by Government, in the interest of the public living in neighbouring areas in British India.
Right to tax traders doing business within the Chiefs jurisdiction.
Right to freedom of action in relation to making their sons Chiefs under their own jurisdiction.
Right to help those Bawis who were by Custom, not open to redemption.
Right of freedom of action in relation to other kinds of Bawi who used to constitute the means whereby the Chiefs could cultivate and acquire the ability to sustain their villages in peace and in war.
Right to attach the property of their villagers when they wished or deemed fit, with or without fault on the part of the villagers.
This Administration of Justice Rule, 1937 imposed certain impositions of duties on the Chiefs. It was made under the Government Notifications on 25th. March 1937.
Duties concerning litigation:
All cases between the Lushai were, as far as possible, to be decided by the Chiefs according to Lushai customs.
Cases between the parties in the same village should be heard by the Chief and Upas of the Villages, and a clear roder with a brief statement should be recorded in the Village Register and signed in the Village case Order Book by the Chief or Khawchhiar
An order passed by a Chief should be entered in the Village Order Book at the time of the decision of the case.
Neighbouring Chiefs make every endeavour to sit together as a bench to decide any dispute between the Villagers. Petitions filed by individuals to Officers should be referred back to the two Chiefs concerned for original disposal when the parties resided in the adjacent villages.
All appeals against Panchayats and Chiefs` order should ordinarily hear by the Superintendent as he was the final authority in the District.
Any petition to the Superintendent or his Assistants must bear the forwarding note of the Petitioner`s Chief, who should record his opinions on the petition. This rule did not apply when the petition was not in connection with any alleged grievance against the Chief himself or an order concerning a case with which the Petitioner was connected.
Chiefs were held responsible for control their respective villages in every way.
It was the personal duty of a Chief to know his Villagers intimately, understand their lives, their difficulties as also to encourage them to raise their standard of living in all possible ways.
Chiefs were responsible for allotment of cultivable lands among their subjects and also taking for those measures which were necessary to ensure that a Chief’s villagers would be able to support themselves.
Chiefs were supposed to dispose of litigation in accordance with the District Rules for the disposal of Civil and Criminal cases; a Chief was responsible to maintain a copy of the District Rules in his own language in such a way that he could thoroughly understand his responsibilities and the rights of litigants.
A Chief was responsible for control of all matters which his khawchhiar and that all the Books and records required by the District Standing Orders for observance were maintained by the Khawchhiar.
A Chief was responsible for control of all matters which his Khawchhiar did on his behalf.
A Chief had to comply with all District Standing Orders which had been communicated to him, copies of such orders had to be kept properly filed for ready reference by himself or his Khawchhiar.
A Chief was responsible for maintenance of inter-village paths and communications through his ram throughout the year except in cases of difficulties beyond his control due to calamitous floods or slips.
Chief must sign the concerned House Tax Assessment Registers prepared by the Circle Interpreters in token that he admitted this an complete and accurate.
Chief and Headmen were to report to the Superintendent or his Assistants all epidemics, heinous crimes, violent deaths or serious accident, if occurred, within their respective jurisdictions. In case of any death involving suspicion that it was the result of foul play, the concerned Chief, without any further delay, had to send the body to the Headquarters for a post mortem examination accompanied by a detailed report. Where a death was caused by an accident unaccompanied by any suspicion of foul play, the body which be allowed to be buried as usual.
It was the duty of a Chief to see that his Khawchhiar maintained the list of all gun holder of the village(s) under his control. Any variation in this regard must be reported by the Chief to the Superintendents or his Assistants.
Chiefs outside the Surcharge Areas were to report the presence of any foreigner within their respective jurisdictions, no matter whether the person stayed a night or a few hours with the exception of those who obtained a valid pass from the Superintendent or his Assistants.
Chiefs were not allowed to levy Dawvankaina any more. A Chief was, however, at liberty to stop the sale of foodstuff of his Village apprehending general shortage but with an intimation to the Headquarters.
Chiefs must not raise subsriptions from their villagers to build corrugated iron roofed house. The villagers must, however, according to customs, build for the Chief a large Lushai House and repair it free of cost.
If a chief wished to erect a corrugated iron roofed house, he must pay for iron, screws etc. himself. The villagers in that case would erect it and make the dap, post etc. according to custom. The Chief, in turn, would feed the villagers engaged in building the house.
If a Chief wanted his Villagers to help him in other private works, he would invite them in the usual way according to custom. But it was not obligatory on the part of the villagers to render such service for the Chief. However, there was a Mizo custom called Inpui which meant every person should help each other and also the Chief. The custom was still in practice even during colonial rule. Villagers would do all that they could help each other including the Chief.
Duties and restrictions imposed on the Chiefs in the realisation of Fathang:
The maximum rate at which Chiefs might levy Fathang from ordinary villagers was fixed at six snowflake kerosene oil tins of unwinnowed paddy.
No Fathang could be levied on cotton cultivation if the cultivator had a rice jhum capable of supporting him. But if a Cultivator had no rice jhum, the Chief could levy Fathang on cotton also.
No Chief could allow an outsider to cultivate cotton within his land.
Any one who was not cultivating due to sufficient foodstuff stored in his possession must pay Fathang at all the usual rate of Rs. 2/- on demand.
Chief were to see that the incidence of impressments fell evenly on the villagers and on none more than others.
Chiefs were responsible for maintenance of Zawlbuk in proper way.
It was the Government1s desire that the Mizo Chiefs should do all in their power to support all welfare committee schemes.
With a view to assisting the people of the Lushai Hills (Mizoram) to develop their indigenous genius along sound and sincere lines and to afford some measures of protection against disintegration, the following village code would have to be read out and explained by the Chief to all villagers assembled in presence of all village leaders once every month:
We desire to maintain a wholesome respect for all that is best in our indigenous culture which bears the stamp of the learned experiences of our brave forefathers over the time immemorial.
We desire to inspire in our people an ambition to maintain a true sense of proportion as to what wants and desires are reasonable in relation to our natural resources and industry.
We desire to maintain strict loyalty to our Chief in all things lawful in all his efforts on behalf of the welfare of the people, in return of which they will serve the interests of his people so that he may continue to rule.
We desire to inculcate into one and all that we should display the same loyalty to our whole village community as we desire to practise towards our own families.
We desire to integrate into our village’s lives, within the indigenous frame work of our social system, what modern science and knowledge have discovered for strengthening and safeguarding our characters, and health, home, crops, industry, and possessions.
We desire to seek all useful channels for greater use of our leisure time so that by our industry we may bring advantages to our families and our village, and that we may relieve our women folk of some of the harder works, that we may spare them in the hope and belief that they will in their turn take increased trouble n rearing finer children and making better food, clothes and happier and more united homes.
We desire to unite all in contesting our common tendency to the mi hlem hle retaining just pride in the sincere achievement of all manly and courageous feats especially those undertaken for the protection of our community as well as in the industrious successes of our wives and families in their homes and in their schools.
Those of us who are Christians agree to recognize that we should bow to the authority of those who introduced us to Christianity and that we shall be disloyal to them if we do not submit to be discipline.
We desire to inculcate into all our community the need for self-control and the avoidance of all excesses. We desire further to inculcate a true spirit of willing service and discipline into the young men who are the nation of the future, recognizing that without our such proper use to our clans, our families, or to our employees, or even to the faith which we mat profess.”
From deliberate studying of the above points, we can see that major offences like Rape, Murder, Suicide etc. was not now lies under the jurisdiction of the Chief and numbers of their powers was curtailed. But, at the same time it is pertinent to mention that the British government still allow the Chief to try the cases of petty offence, which does not affects the Criminal law according to their own Customary law. The District Superintendent and his Assistant does not at all interfere inside the local administration.
Yet, in fact they consolidate their powers within the limits of their jurisdiction. They externally ruled over them, with imposing certain limitations regarding their powers and authority. But in the internal matters, it will not be wrong to say that they protect and safeguard the powers of the Chief.
NEW TRENDS OF JUDICIARY AFTER INDEPENDECE:
Rules for the Regulation of the procedure of Officers appointed to administer justice in the Lushai Hills, 1937 remains continued also in the new era of District Council. After the Mizoram was under the Sixth Schedule, with having a District Council under the State of Assam, the most remarkable changes happen in the judicial system is the replacement of Village Council Court from the Chief Rule.
By making the Lushai Hills District (Administration of Justice), Rules, 1953, various three tier Court such as Village Council Court, Sub-ordinate District Council Court and District Council Court were set up on the 16th. August 1954. According to this new rule, In case of Superintendents and his Assistants, Subordinate District Council Court came into being to adjudicate the cases between the native Mizo.
The Village Council Court have a jurisdiction to try the petty case falling within the purview of Custom or Customary law. They were also able to deal the cases of both Civil and Criminal nature of small cases, but subject to only if both the parties were Tribal resident within its territorial jurisdiction. But, the Village Court is not competent to try the cases of which the punishment is obligatory under the Indian Penal Code.
The Sub-ordinate District Council Court have an original jurisdiction to try the cases and are also competent to take a case even both the parties were not within the same territory but subject to that both parties should be a person of Schedule Tribes. It also sometimes acted as an Appellate Court as it can hear the appeal from the Village Council Court.
The District Council Court is a Court of Appeal in respect of all suits and cases triable by the Subordinate District Council Court. In further that, the decision of District Council Court can also be appeal in Assam High Court in case of a high sensitive adjudication. However, Session cases involving murder, rape, heinous crime etc. were still tried in the Deputy Commissioner Court functioning as session Judge as per the “Rules for the regulations of the procedure of Officers Appointed to Administer Justice in the Lushai Hills, 1937”.
Mr. Dr. HTC Lalrinchhana, presently holding a post of Addl. District & Sessions Judge at Aizawl Judicial District, Aizawl clearly writes the changes that took place in a judiciary during the Mizo District Council in his book – “An Analytical Study of Judicial system in Mizoram’ which is as follow -
The Assam High Court (Jurisdiction over District Council Courts) order, 1954 was chalked out on the 16th January, 1954 under No.TAD/R. 11/53/23. in respect of appeals from the decision of the District Council Court and supervision of the Courts under the Administration of Justice Rules,1953.
Pertaining to transfer of certain cases to the courts constituted under the paragraph 4 of the sixth schedule to the Constitution of India in the Autonomous District of Assam, the Assam Autonomous District Administration of Justice (Miscellaneous Provisions) Act, 1957 12 (Assam Act No. XXII of 1957) had enacted on 29th November, 1957.
Whereof, the Deputy Commissioner and his Assistants shall have no power to try a case which is exclusively triable by any court constituted under paragraph 4 of the sixth schedule to the Constitution of India; and any case which at any stage after the Deputy Commissioner or an Assistant to him has taken cognizance of, transpires to be so triable, shall be transferred to a competent court as soon as it so transpires.
Mizo Customary Laws 1956 effective on 30th November, 1956 under Mizo Hnam Dan (Operation) Order, 1957 was made by the Mizo District Council to be used together with the Lushai Hills Autonomous District (Administration of Justice) Rules, 1953. The Mizo District (Inheritance of Property) Act, 1956 also made on 18th May, 1956 under No.TAD/R/123/53 in pursuance of the paragraph 11 of the sixth schedule to the Constitution of India and published the same in the Assam Gazette, dt.23rd May,1956.
The said Act of 1956 was also made to cope with the Administration of Justice Rules, 1953. The Pawi-Lakher Autonomous Region Administration of Justice) Rules, 1954 was also made in pursuance of paragraph 11 of the Sixth Schedule to the Constitution of India under No. RCE 11/54/9/351, dated 1st March, 1954. It was created courts for the said region namely Village Court and Regional Council Courts constituted under sub paragraph 6 and paragraph 7 of the said Rules of 1954 respectively. In respect of appeal and superintendents of the said courts, the Assam High Court (Jurisdiction over Regional Council Courts) order, 1959 was made under Notification No. TAD/R/11/53/32, dated. 8th August, 1959 by the Governor of Assam as the powers vested under sub-paragraph (3) of paragraph 4 of the sixth schedule to the Constitution of India.
The Assam Autonomous District (Administration of Justice) Act, 1960 was also made on 15th April 1960 for the appointment of Additional Deputy Commissioner for an Autonomous District either generally, or for the trial of the particular case or a particular cases, civil or criminal and may direct that such Additional Deputy Commissioner shall for the general or special purposes aforesaid exercise all or any of the powers of the Deputy Commissioner.
SEPARATION OF JUDICIARY:
Separation of powers is one of the paramount elements of Good Governance. And for the delivery of impartial justice, Judiciary ought to be kept aloof and isolated from the Legislature and Executive. The doctrine of Separation of Judiciary is of ancient origin. During the 16th and 17th centuries, Aristotle, John Bodin and John Locke formulated this doctrine. In the Indian context, Article 50 of the Constitution of India, which is Directive Principles of State policy states that “the state shall take steps to separate the Judiciary from the Executive in the public services of the state”. The Supreme Court of India upheld that independence of judiciary is an essential attribute of rule of law which is a basic feature of the constitution in the case of C.Ravi Chandran Iyer v. A.M. Battacharjee.
And at the same time, the Gauhati High Court also verdict two precedents in the case of Dingliana v. Union Territory of Mizoram & Ors under Civil Rule (HC) No. 30 of 1985 and in the case of PUCL, Mizoram v. State of Mizoram & Ors. Under Civil Rule No. 4/91 (MB). (Civil Rule No. 3626 of 1991) for the imperative needs of Separation of Judiciary in Mizoram. And in pursuance of the Gauhati High Court verdiction, on 15th January, 2002, the Council of Ministers meeting, Mizoram decided to realize Separation of Judiciary in Mizoram. And after a long process of separating Judiciary from the administrate control of Executive as well as Judiciary, ultimately, the Government of Mizoram under Notification No. A. 48011/2/2008 – LJE/61: Dt. The 1st July, 2008, Asadja 25, S.E. 1930. Issue No. 253) Judiciary has been separated from the Executive Control in a fully fledged, in the whole state of Mizoram including the Autonomous District Councils Area.
And therefore, as Separation of Judiciary has been fully implemented, ‘Mizoram Civil Courts Act, 2005’ and ‘Mizoram Judicial Services Rules, 2006’ which were already drafted and approved by the Government of Mizoram has been finally enforced with the immediate effect. And since then, the administrative authority to the Judicial Officer as well as the Court has been shifted to Gauhati High Court, Aizawl Bench, which is governed by Gauhati High Court Rules, initially framed in 1954 from the Government of Mizoram.
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BIBLIOGRAPHY:
Chatterjee, Suhas: Mizo Chiefs and the Chiefdom, published by MD Publications, New Delhi, 1995
Government of Mizoram. Directorate of Art & Culture: Mizoram District Gazetteers, Aizawl, 1989
Hansaria, BL: Six Schedule of Indian Constitution, published by the Universal Law Publishing Company, Delhi 2010
Lalrinchhana, HTC: An analytical study of Mizoram Judiciary: A holistic approach and challenges ahead, published by Rualkhuma Colney, Aizawl, 2008
Patnaik, Jagadish Kumar: Mizoram - Dimensions & Perspectives, published by Concept Publishing Company Pvt. Ltd, New Delhi, 2008
Prasad, RN : Government & Politics in Mizoram, published by Northern Book Centre, New Delhi, 1987
Remruatfela, K :India Union chhunga Zofate rin luh kan nih dan, published by Loisbet, Aizawl, 2016
Remruatfela, K: Mizoram Judiciary Thanchhoh Dan, published by Loistbet, Aizawl, 2018
Sharma, Suresh K: Documents on North East India: Mizoram, published by Mittal publications, New Delhi, 2008
Prasad, RN & Chakraborty, P: Administration of Justice in Mizoram, published by Mittal Publications, Delhi, 2006
Zorema, J: Indirect Rule in Mizoram 1890 – 1954, published by Mittal Publications, New Delhi, 2007
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