THE CONCEPT OF ‘RIGHTS’ IN TANGKHUL(NAGA) JURISPRUDENCE BY: MUNGVAH NINGMATHAN
THE CONCEPT OF ‘RIGHTS’ IN
TANGKHUL(NAGA) JURISPRUDENCE
AUTHORED BY: MUNGVAH NINGMATHAN,
PhD, Faculty of Law, Delhi University
ABSTRACT
This paper critically discussed the
concept of rights in the Tangkhul society. Rights and duties are very similar in
attributes to the customs and practices of the primitive Tangkhul society. Tangkhul
Nagas are the tribals who live in northeast India. It has an origin pointed
towards the Mongoloid people in central China. Customs are the sources of law
in the Tangkhul Naga society.
Tangkhul Nagas follow the religion of animism where there is one supreme God
whom they worship in spirit, Ameowa.
People believe and follow the command of Sharva
(priest) who is the intermediary between people and God. The oral customs and
traditions passed down the generations became the customary law which people
tend to follow by their choice. The Tangkhul people codified the customs and
practices into law by the reasonableness of the emerging society. The dos and
don'ts are recorded in the codified law and people are inclined to follow it.
Rights can be natural or moral and legal in nature. The ideas of rights create
the legal persons. The legal personality can exercise its rights. In Tangkhul
society, rights are similar to duties. It is like the concept of natural law at
one point. It is the reason that gives them the choice to exercise their limits
and participate in society. The command is from self-acceptance to the order of
the divine. The lawmaker or lawgiver is not human, the sovereign is the Ameowa. It is their willingness to abide
by the order given by the sharva. In
Tangkhul society, the claim for the rights deprived is not in the hands of
every person. It lies to Shimva, the
head of every house. He decided to claim the rights in case they were violated.
He has the right to approach the court. This study on the concept of rights in
the Tangkhul society broadens the prevailing legal system of Tangkhul customary
law. The comparative analysis with the jurisprudence of civilized nations helps
to understand the necessity of customs and its importance.
1. INTRODUCTION
The Tangkhul people are an ethnic group
native to the northeastern region of India, primarily residing in the Ukhrul
and Kamjong districts of Manipur. They are part of the Naga tribes, which span
across northeastern India and parts of Myanmar. The Tangkhul predominantly live in the Ukhrul(now bifurcated into
Ukhrul and Kamjong) district in Manipur, but their presence extends to parts of
Nagaland and Myanmar. They form one of the largest Naga tribes, with a
significant population in the Ukhrul district. The primary language is the Tangkhul dialect, which belongs to the
Tibeto-Burman language family. There are various dialects within the Tangkhul language, reflecting the
tribe's diverse and widespread settlements. Every village speaks its own
tongue. Traditional Tangkhul attire
includes shawls, headgear, and ornaments. Men typically wear a cloth called
"ngapong", while women wear
skirts known as "Kashan”. The
significant festivals of Tangkhul
include Luira Phanit (seed sowing
festival), Thisham (sending away dead
souls), and Mangkhap (festival after
harvest), which celebrate agricultural cycles, community bonding, and cultural
heritage. Music and dance are integral, with traditional instruments like the
drum, gong, and flute. Their folk dances and songs often narrate stories of
valor, love, and daily life. The Tangkhul
are predominantly agrarian, practicing both terrace farming and shifting
cultivation (jhum farming). They grow
crops like rice, millet, maize, and vegetables. They are skilled in weaving,
wood carving, and pottery. Their handwoven textiles are particularly famous.
Traditionally, the Tangkhul practiced
animism, worshiping natural elements and ancestors. Over the past century,
Christianity has become the dominant religion due to missionary activities.
Today, a significant majority of Tangkhul
people are Christians, predominantly Baptists. Tangkhul society is organized into clans, with each village having
its own unique identity and autonomy. The clan system plays a crucial role in
social governance, marriage, and kinship. With modernization, there is a
conscious effort to preserve their traditional culture, language, and
practices. The Tangkhul people, with
their rich cultural heritage and unique identity, contribute significantly to
the diversity of the northeastern region of India. The Tangkhul Naga system of
administration is often compared with the Greek city-state, every village is a
republic ruled by the chief is assisted by Hangva[1].
The Tangkhul Naga follow the principles of democracy even though this concept
is unknown to them. Nobody is above the law. Even the chief cannot violate the
customs. The duties of the chief, hangva,
and citizens are clearly defined, and follow the customs, which are very
strict. People followed the custom which is unwritten and the violators were
given befitting punishment. When the colonial British first encountered the
Tangkhul Naga, they were impressed so much that the British said “there is no
need to sign an agreement with the Tangkhul Naga, their spoken word and
promises are enough, the Tangkhul Naga are man of honor.” [2]
This sentence indicates how the Tangkhul people were trusted by the British and
were well disciplined.
2. ABOUT
TANGKHUL NAGA
2.1. Origin of the Tangkhul Naga
The origin of Tangkhul Naga is still
undefined. It is still in obscurity. The trace for its origin touches upon the
other Naga tribes. ‘The problem of establishing the origin and history of the
Tangkhuls(as also the Naga) is due to the non-existence of written script/s.’[3] According
to Hodson in his book "Naga tribes of Manipur”, he says that there are at
least three theories for the origin of Tangkhul. First, they migrated from the
valley due to heat and mosquitoes to the hill where they are settled now. Second,
they originated from the Makhel,
where the people came out from a cave. Third, he talks about the growth of the
population of the older villages and spread across. However, he failed to
mention the indigenous writers' claim of migration from Mongolia. Tangkhul people belong to the big clan
of the Sino-Tibetan people and were the descendants of these people. Tangkhul belongs to the Hau groups of China, among the famous
three groups of people, Mao, Hau, and Chao. ‘Nagas are the offspring of Mongolia.’[4]
According to some Anthropologists, Paleontologists, and Archaeologists, it is
said that the Hau people were living
in Mongolia 200 B.C as stated by Wungnaosui. But they cannot answer the exact
reason why people go away from Mongolia. Some theories try to answer why this
quest. Firstly, it is because of the cruel ruler who loves war. Due to his
interest in war, he forces people to be in an army and conquer other places. He
taxed people heavily and the people could not tolerate the treatment of the
king. Therefore, many people run away from the place. The second one is that
the Tangkhul people went away from
Mongolia because the land was not fertile and the continuous famine prevailed
in the land. So, the people migrated from this place. Many people fled to Khaki[5](China)
and the Tangkhuls were among the
people who fled from Mongolia. These people are scattered all over the
south-east; Tibet, Korea, Japan, Thailand, Indonesia, and Malaysia. The exact
year for the spread to all over these nations is unknown[6].
Naorem Sanaojaoba in his book “Origin and Myth of the Tangkhuls”, mentioned
that the Hau Tangkhul first settled in the China Zingjian Yunon province’s
Huang-ho and Yangtze riverside and
the Maxiong mountains. Tangkhul
people migrated from this place again for various reasons. Some valid arguments
are
(a) this place is not fertile,
harvests are not surplus, and cannot get enough food for sustenance and
survival. So, people move out in search of more fertile places;
(b) in this certain period, it was
the time the Great Wall of China was built. Gin Shi Huang ruled China in 221
B.C and he built the great wall. He used people and forced labor and many
people died in the work. Additionally, the Yin and Shan dynasties attacked and
people were scattered.
According to W. R. Shimray, he
assumed that the Naga-Kuki-Mizo were living in the southeast of China in Yunon
province Guizhou and Guangzil in 200 B.C. According to W.I. Singh in his book
titled “The History of Manipur”, Hau Tangkhul settled for a long time in Tounghe and Tapaw in the region Samshok(Thaungdut in Myanmar) in Ava[7].
This assertion is found in the writing of M.K. Shimray in his book titled “Miwurlung”. Here he says that Hau
Tangkhul people moved from Mongolia, passed through China, stayed in Myanmar
for a long time, and settled at last in the present hill terrains, where
Tangkhul is now. It is true that Tangkhul
people settled in parts of Myanmar in the course of their migration. According
to W.R. Shimray, there is still a remnant of settlement in the China riverbanks
near Taungdut, Tounghe, and Tapaw. In
folk songs, this place is indicated as Marilung,
where meri-shiren(iron and steel) are
found around 10 /11th B.C.
The generation belonging to the Marilung in Samshok are narrated in a folk song, as follows:
‘O kachili tunglo
Ava samshokli tungtheiya
Samsokli ungngashang-shang,
Shimraywo kharar-o
Shokvao kaphungli shokngvao,
Ngachang chihuili rom ungpheizai
Mavalungli mei ungayar,
Shimray mitun chungmeiya,
O chisomsom, ngahong rara vashung
Somra phunghui zangshunga.’[8]
In English free translation, it means
like this-
‘O where do you settle
We settle at Ava Samshok
Move into Samshok clan by clan,
Shimraywo the
eldest one
We shout at the Shokvao mountain,
We eat the packages in the Ngachang Chihui,
We divide fire in Mavalung,
Shimray has
more descendants,
On that side, the wood we go
Till we reached the Somra hill tract.’
The
folksong is about the migration from Samshok,
Myanmar, and how the people scattered in the present Tangkhul areas. Tangkhul
came to our present settlement from Myanmar in three ways: from Kangkum in the southern Tangkhul region, the second is from Kongkan in the east Tangkhul region and the third is from Somra Ngachan from the
North Tangkhul region. People came
into contact from these three sides and settled in the present Ukhrul and
Kanjong districts and partly in the Burma Somra
areas.
The people in a particular place have
a manner that is prevalent in society. From generation to generation these
manners are passed on. Custom may comprise of all practices such as religion,
perception, commandments, order, etc. So, the thinking and ideas of an
individual can never be different or diverted from society. In a place where
people settle, the chief of the place and his hangva make rules, and people follow and obey them. Certain rules
exist to keep the Tangkhul society in
order. According to T. Luikham in his book “Okthot
Mayonza”, he wrote the ultimate product of Wurtam, the end for it as riyan.
The creation to answer the need regarding the norms of Tangkhul. It is
applicable to all Wung[9]
places. ‘The Tangkhul people living under this Riyan[10]
are Luichumnao[11].
Citizens who are living under Riyan,
a strong one cannot oppress the weak, a rich cannot deprive the poor, a naughty
one cannot rob or steal, and one should not hurt others, and follow a uniform
law, to live a good and virtuous life together is the aim of Riyan.’[12]
Here he categories Riyan into 5 parts-
1. Shaiyan (tax
law)
2. Khuyan/Khayan (village law)
3. Longyan (union
law)
4. Shiyan (law of
crimes)
5. Shongran
(penal law)
The above law that Tangkhul follows
was true and it is more of a customary practice and not codified until this. It
is oral tradition until the arrival of William Pettigrew brought education to
the Tangkhul people at the beginning of the 20th century. Riyan is more of a
concrete law specifically categorized to the need of understanding by the
author. However, Wungnaosui R Shimray mentioned ‘shiyan chikan’ as the law or ultimate rules or norms in his book. Ameowawui shaar: in the olden days, by Tangkhul Hau shiyan-chikan the
ancestors, men, animals, birds, plants,
and the whole universe feared the master Ameowa
Zinghungleng, and lived religiously submitted to him. To do the will of Ameowa, good conduct, good conscience,
good words, avoid bad things are the shaar
(commandments) of Ameowa. Along with shaar, people are bound to perform sharphahor (rituals) for anything like
war, housing, cultivation, etc to Ameowa.
The other one is the Angachayan: literally
it means law of nature. In any settlement of a village, the people of the
village and the neighboring villages are bound by certain norms. The way they talk, meet, marriage,
agriculture, hunt, travel, etc. and they respect each other and strictly follow
all the norms. Moreover, living together with nature, animals, birds, and
ecology the people follow the law of nature. To keep in equilibrium, they
follow and live according to the order of nature. Eat, hunt, cultivate, etc.
according to the seasons. The reason within the Tangkhul population is very
clear that they follow the natural order and obviously, all the order and norms
came through Ameowa. It is right to
assert that Tangkhul follows natural laws and they belong to a natural law
school.
3.1. Customs
In every early society, customs are
the only source of law. Customs originate from the common consciousness,
convenience, or necessity of the people. Custom is a practice by people over a
long time that becomes a custom. Maine, Ihering, and Gray propounded that
custom is based on decisions such as the judgment given by the kings or the
judicial decisions. Late, the decisions became the custom. Salmond gives two
reasons for the recognition of customs. First, the courts may accept customs as
an authoritative guide because they are commended to the national conscience as
a principle of justice and public utility. Second, the existence of an
established usage is the basis of a rational expectation of its continuance in
the future. Roman jurists laid down the tests for recognizing a custom as laws
were reasonableness and antiquity. In India, the Indian constitution and the
law court validate customs as laws. In the case of Smt. Ass Kaur (Deceased) by L.Rs vs Kartar Singh (Dead) by L.Rs. &
Ors[13],
the Supreme Court held in para 25
“25. As statutory law did not exclude
the applicability of the customary law, the principle that customary law would
prevail over the statutory law would apply. It was so found by the courts
below.”
The court addressed arguments
regarding the validity of customs, emphasizing that their legitimacy should
align with principles of justice, equity, and good conscience. However, it
differentiated between the mere applicability of a custom and its ethical
justification, suggesting that customs lacking in these fundamental values
might not be enforced, despite their traditional observance.
Customs are classified into (1)
customs with sanction and (2) customs without sanction. The austinian term the customs which has no
sanction as positive morality. Customs with sanctions are further classified
into (i) conventional custom and (ii) legal custom. Conventional customs are
the customs that govern the parties to agreements, treaties, or conventions.
Legal customs are of two types (a) general customs and (b) local customs.
General customs apply to the whole state. General legal customs are the customs
that prevail throughout the territory of a state. Custom usually meant local
usage in law. Local customs are limitedly confined to a particular place. In
India, due to the diversity of the population local customs are further
classified into geographical customs and personal local customs for the
convenience of the people. In the Indian legal system, customs can be abrogated
by the statute, and at the same time, a statute cannot prevail over custom.
4. RIGHTS AND THE TANGKHUL CONCEPT OF RIGHTS
According to Salmond, rights are of two kinds: either moral or legal. A moral or
natural right is an interest recognized by a rule of morality- an interest the violation of which would be a
moral wrong, and respect for which is a moral duty. On the other hand, a legal
right is an interest recognized and protected by a rule of law- an interest it
is, and respect for which is a legal duty. Moral rights and legal rights
coincide sometimes. Morals may not be in favor of someone’s legal right but the
laws that protect legal rights are influenced by public moral views and ideas.
Positivists don’t agree that there is such a moral or natural right, as rights
are created by the positive law. “Right is something that is permitted to
individuals in a society. Rights are concerned with interests and indeed have
been defined as interests protected by rules of right, that is by moral or
legal rules.”[14]
Holland
defines legal rights as the capacity residing in one man to control, with the
assent and assistance of the state, the actions of others. He follows the ideas
of Austin as the rights are derived through law.
According to Austin, right is a faculty which resides in a determinate party or
parties by virtue by a given law and which avails against a party or parties
other than the party or parties in whom it resides. A person can be said to
have a right only when another or others are bound or obliged by law to do
something or forbear in regard to him. It means that a right always has a
corresponding duty.
According to Diguit, rights are not inherent or natural but are derived from
social functions and duties. They exist to ensure that individuals fulfill
their roles within society, thereby maintaining social cohesion and promoting
collective welfare. Rights are correlated with duties. Rights are part of the objective law
regulating social behavior to ensure harmony and cooperation within society. He
criticizes the traditional concept of rights, often seen as inherent and
individualistic entitlements. He argues that such rights are abstract and can
undermine social solidarity by prioritizing individual autonomy over collective
responsibilities.
Kelsen also says that there is no such conception as a right in
law. Rights are legal norms prescribed by the legal system. Rights derive their
validity from their creation according to the legal system’s norms, independent
of moral or natural law. Rights are part of a hierarchical structure of norms,
with the Grundnorm at the top. Rights are relative to the legal system and can
change as the system evolves. Rights can be claimed by an individual within the
legal system, always tied to corresponding duties. According to Kelsen, rights
can be claimed because it is a part of norms.
In India, the Supreme Court of India has observed in
State of Rajasthan v. Union of India[15],
“ In a strict sense, legal rights are correlative of legal duties and are
defined as interests which the law protects by imposing corresponding duties on
others. But in a generic sense, the word ‘right’ is used to mean an immunity
from the legal power of another. Immunity, in short, is ‘no-subjection’.” The
court is clear here that a right is an interest protected by the law and the
right gives immunity to the holder of the rights and the other to incline with
their duty toward the right. So, if one has legal rights the other can be
imposed with a duty to protect the right but at the same time legal rights come
with legal duties.
Rights are created by customs in
Tangkhul society. Rights properly so called are the creatures of law properly
so called; real law give rise to real rights.[16]
4.1. The Tangkhul
Customary Law and the Concept of Right
Tangkhul strictly adhered to the
mores and norms of the ancestors. ‘The conception of natural law as an order
which commands human respect becomes possible only when man becomes conscious
of his position in the universe when a law is no longer just a part of magic or
religious rites but emerges as a separate concept.’[17]
There is a concept of ‘No war zone ’ or ‘safe place ’ when war is fought and
the losing parties can take shelter in those areas, or a thief or a murderer or
a robber can take shelter in these places and no one can attack when they take
shelter in such places. The customs practices in Tangkhul society are very far
ahead of present humanitarian law. People strictly follow the norms of war, of
agriculture, of marriage, of the forest, etc. The customs and practices of
Tangkhul were solely oral traditions that negatively impacted the modern
scholar and the colonization of both English and India caused the decline of
culture to pass on. Tangkhul wurtam
(customs) are mainly focused on social rights. The economic rights come after
fulfilling the social rights. Starting from the divine order from Ameowa, the
supreme God of Tangkhul, and the wurtam,
customs prevailing since time immemorial indicate that people's will is the
main source of custom. Studying the wurtam
one by one, it is pertinent that people have the will to follow the norms and
it is not the interest that is keeping the society intact. Interest can never be
an element of rights in Tangkhul society. The practices of inheritance,
marriage, war, etc. all have a divine intervention and people tend to accept
the command of the divine law. They incline more onto will or choice of their
own. They did not obey for the benefits they may get in return. It is complete
acceptance of the norms. Thus, the Tangkhul
people have followed the divine element with the power of reason that Ameowa is the virtuous one, and obeying
his command can be the best way of existence.
4.1.1 Sharra: The source of all Norms and Rules
‘Shaar’ is a term in the Tangkhul dialect.
‘It is a religious commandment’[18]. The
creator of vegetation, animals, universe, and human beings, Ameowa Zinghungleng, doesn’t want human
beings to commit sinful deeds, wrong conscience, bad words, and others that Ameowa doesn’t like. ‘Shar’ is what Ameowa wants us to do. When anyone does bad things, sinful in
nature is ‘sharra’. And whoever does
such things or deeds has done against the law of Ameowa. The person who does not heed the ‘sharra’ will die or gradually diminish away from the earth. So,
people used to teach others not to commit anything that is considered ‘sharra’ because it enraged Ameowa, and the consequences were not
good. Ameowa commands in the
commandments that he does not agree, which one will result in death is
‘sharra’.[19] Sharra is the commandment given to
humans by Ameowa. So, here, the
authority lies in Ameowa where sharra is a command with authority endorsed
by Ameowa. Our ancestors take the
word ‘sharra’ with utmost seriousness
and keep it sacred. Our forefathers believed that Ameowa cursed those who broke the ‘sharra’. Sharra is the
top in a pyramidal concept where the rest of the laws are below it. Sharra is the law where the rules and
norms take their authority in command. It is the most authoritative element in
the Tangkhul jurisprudence.
Sharra is a
theory of law that deals with what law is and what law ought to be. ‘What law
is’ is the command of the Ameowa and ‘What law ought to be’ is the consequence
of not keeping the command. Sharra
changes its concept with time in modern society. Some Tangkhuls scholars say
that sharra includes something that
cannot be done as it against Ameowa, acts against the order of nature, against
humanity, transgression to Kameo,
breaking norms, violating human laws, something that is done can bring a curse
to oneself, families, or villages, etc. And these all unacceptable practices
and offenses are understood by the word sharra
in Tangkhul jurisprudence. So, ‘the law is’ and ‘the law ought to be’ perfectly
fit into Sharra. Sharra is the law and not obeying and keeping sharra comes with consequences which is what ought to be.
The things or actions which are ‘sharra’, cannot be done or performed.
‘Because it is the truth, and the truth is Ameowa’.[20] Keeping
the Shar and living the will of Ameowa make a man, a powerful weapon
like an edged edged-sword. Shar helps
us to preserve our culture, rituals, festivals, norms, and customs. If we do
not keep and obey the shar, our
manners, understanding, rites, norms, etc. won't be there. Sharra is used in almost all the ways of Tangkhul customs. It was
forbidden to use the name Ameowa
unnecessarily in ancient times. People take it very seriously, the name.
Because of the fear of the name and greatness, they believe in Ameowa, they say other names such as ‘Kazingwung[21]’
and ‘Ngaleiwung[22]’.
During quarrels or fights between one another, one cannot say “Ameowa na theiranu'' which means “let Ameowa be our witness''. Instead, people
say “kazing ngaleina theiranu''
means, “Let heaven and earth be our witness'’. People believe that using the
name in vain enrages Ameowa and a curse falls upon the land. Our ancestors
believe and obey the “sharra” and
this is the cause for all the customs of Tangkhul.[23]
People were religious in primitive times. The traditions and practices are
passed down orally. Still, the concept of sharra
is prevalent in Tangkhul society. It is compatible with all moral norms
accepted by people in modern society. Some are found exactly in the lawbook of
the nations.
4.1.2. Tangkhul Customary Law and
Natural Law
Natural law has its foundation by the
Greek thinkers. ‘Man is a part of nature in a twofold sense: on the one hand,
he is part of matter, part of the creatures of God and as such he partakes of
experience; but man is also endowed with active reason which distinguishes him
from all other parts of nature. As such he is capable of forming his will in
accordance with the insight of his reason.’[24]
As to Tangkhul, reason became a moral
force to conform to the divine order. It resembles the stoics. ‘To the Stoics,
the postulates of reason are of universal force. They are binding on all men
everywhere.’[25] Sharra is the product of reason in
Tangkhul customs and legal jurisprudence. ‘Reason orders his faculties in such
a way that he can fulfill his true nature. When man, who is destined to be a
social being and citizen, lives according to reason, he lives “naturally”. The
law of nature thus becomes identified with a moral duty.’[26]
Tangkhul people listen to the natural calling of insects, animals, birds, etc.
to work and plant crops. Here, duty and rights are more alike in the customs of
the Tangkhul if we compare them with the Greek legal theory. Natural rights are
from natural law theorists whereas rights derive from reason. If the rights of
the Tangkhul people are to be studied in accordance with natural law, it can be
said that rights exist through reason and it is one choice or will, that is the
element of right.
4.1.3. Tangkhul Customary Law and
Positive Law
On the other hand, we can study in
the line of positivist thoughts. Right is an interest protected by law. The
protector is the sovereign who commands with a sanction, which means the
creator of the law is the sovereign and the law is a command with sanction.
Kelsen Grundnorm plays a major role in this discussion and it is understandable
that there are many new ideas to be popped up in the study. In Tangkhul
society, there is a norm that everyone follows. Sharra simply means a taboo or prohibited act. People are bound to
obey this. It is a prohibition and the people disagree with an act that is
wrong and punishable at the same time as it is against Ameowa. Ameowa punished
whoever was breaking the norms, sharra,
immediately or gradually. Here, sharra is
the command sanctioned with punishment from the Ameowa, who is sovereign in the Tangkhul society. If the law and
the right are interpreted in this way, the Tangkhul customary law is purely a
positive law. But the creator of the law, the sovereign who commands with a
sanction is not human. And protection of rights comes through his sharva(priest) or the chief of the
village. Ameowa is a God, a supreme deity that rules the conduct of people
through a priest, speaking, and commands to follow the Shaar. And like Kelsen's
law theory, norms are under a grundnorm. Grundnorms is the source of all law
and derived sanctions from the law itself. In this, Austin and Kelsen part ways
as positivists. Every legal norm is enforced through grundnorms. Thus, in
Tangkhul society the basic rules, customs, practices, and usages are under sharra. Sharra is the ultimate source of customary law. It is also the
basic element for the source of rights and duties in Tangkhul customary law.
Like the positivist, the law is a system of oughts in Tangkhul customs. So,
legal rights are merely the duty as viewed by the person entitled to
requirements fulfillment. Kelsen's pure law doesn't emphasize individual
rights, and the same is true in Tangkhul's practices. Sharra can indicate both the duty and the right. If you obey the
command of Sharra, you are protected
by Sharra and only this can give you
rights. Here, Kelsen’s concept of ‘grundnorms’ is eminent in the study of ‘Sharra’ of Tangkhul customs. Rights and
duty are norms and are part of grundnorm. Right and duty are derived from sharra in Tangkhul custom.
4.1.4. Rights in Tangkhul Society
From the above, natural rights or
moral rights and positive rights or legal rights can be ascertained in Tangkhul
jurisprudence. The dictate of reason is moral rights. The moral rights are
inherent in nature. If we follow the way of command, sharra, it gives us a legal right. The sovereign is obliged to
protect the rights. The will right theory is where the concept of rights in
Tangkhul jurisprudence lies. It is not the interest of the individuals but the
will or choice to keep the command. Here in Tangkhul jurisprudence, the
individual has a will that the present legal system cannot interfere with. The
right emerges from a person's will. Through the dictate of reason, individuals
decide from self; self-assertion, and self-expression. Rights are like a power
over oneself, to do or not to do. Sharra
plays a big role in understanding the concept of rights. It is a dictate or
command over an individual internally. Sometimes, the events that occur to an
individual, such as sickness or death, control the minds of people to follow
the dictates of reason to keep the Shaar.
Duty was first done to get the right. Duties and rights go hand in hand. As
John Rawls says about the duty of an individual that needs to be done according
to the institution, it is part of justice. In Tangkhul society, it is the way a
right was imparted to an individual.
“…natural duty is that to support and
to further just institutions. This duty has two parts: first, we are to comply
with and to do our share in just institutions when they exist and apply to us;
and second, we are to assist in the establishment of just arrangements when
they do not exist, at least when this can be done with little cost to ourselves.
It follows that if the basic structure of society is just, or as just as
reasonable to expect in the circumstances, everyone has a natural duty to do
what is required of him. Each is bound
irrespective of his voluntary acts, performance or otherwise.”[27]
In Tangkhul jurisprudence, a right is
automatically imparted once we do the obligations or duties sanctioned by the sharra. Right is not the interest to be
protected but is a choice that obliges oneself by the dictate of reason. It is
the will of an individual to express his conscience and not a benefit of things
to one's reason. Right is related closely to duty and obligation. It is a moral
right with no enforceability. The continuous practices of norms became practice
and people began to protect themselves through the legal system by accessing
court. Thus, the court preserved the rights of individuals through the law.
Only with the concept of coming together(social contract) by forming Long among the Tangkhul people, did the
moral right become a legal right. The chief and the village council protect the
rights of Tangkhul society by doing justice in case of violation. By keeping
the sharra, a moral right becomes a
legal right in Tangkhul jurisprudence.
5. Legal Personality in Tangkhul
Jurisprudence
A person is used in a wide meaning.
It is derived from the Latin word ‘persona’, which means mask worn by actors.
So, A legal person is any subject matter other than a human being to which the
law attributes personality.[28] Saving
defines a person as the subject or bearer of the rights. Gray defines a person
as an entity to which rights and duties may be attributed. Holland says rights
not only reside in but are also available against persons. Persons are the
subject of duties as well as rights. A person is classified into two- a natural
person, and a legal person. Natural person means human beings. Legal persons
are those things that are treated as human beings for legal purposes.
In Tangkhul society, everyone is a
natural person. Everyone is equal in status. A slave has no rights as he is
like an object to his master. The master-slave relationship is not applicable
in Tangkhl society. Everyone is capable of rights and duties but not everyone
is a legal person. ‘First: each person is to have an equal right to the most
extensive basic liberty compatible with a similar liberty for others. Second:
social and economic inequalities are to be arranged so that they are both (a)
reasonably expected to be to everyone’s advantage, and (b) attached to
positions and offices open to all.’[29]
This excerpt is in consonance with Tangkhul society. The legal system under the
shiyan chikhan does not recognize any
person unless he is the shimva, head
of the family. Shimva is a person who
is the head of the family in a house. Mostly, the father is considered a Shimva. When the father grows old or
when the father is no more, then the eldest son in the family becomes the Shimva. Not anyone in a family can
complain about a particular matter or dispute to a village court or chief.
According to the practices of Tangkhul, it is the duty of the shimva to address any issues to the
chief or the village court. In the Tangkhul customary legal system, only the shimva has the authority to petition any
legal matters to the customary court, particularly to the chief of the village.
Or when a dispute of theft arises between two families, the matter is first
consulted between the two shimva, and
almost all the time, reconciliation is the solution. The authority of the
reconciliation process solely lies in their hands. Whatever matters that cannot
be solved will go to the clan leaders, known as piba[30].
If the dispute is from the same clan, then the piba decides for them. If it is between different clans, then the
reconciliation process is done between pibas
and several other clan elders, and a solution is brought. So the shimva plays a very important role in
Tangkhul society and it is learned that he is the only legal person in every
family. He is responsible for any issues that arise from his child, cattle,
pets, etc. in the village. He is responsible for shai[31]
to the chief of the village. Thus, it came with a responsibility to be the head
and legal person of the house.
6. Access to Justice in Tangkhul
Jurisprudence
Legal persons play an important role
in accessing justice for the violations of rights. The right is compensated in
the form of justice in case of violation. In the case of rape, the shimva of both parties will first try to
resolve it through reconciliation and if it is solved between them, it is
finished. Being the head of the family, they carry the rights of the whole
family. In case they fail to resolve the problems among shimva, the victim shimva
can approach the chief or village court. In this way, a case is brought to the
village chief or court by the shimva.
If anything happens to a person. One cannot directly approach to solve the
problem to someone or the village court, it is only through the passage of shimva that the problem is solved. So
for violations of any rights of a person, a legal person has the right to claim
for them that is shimva. Raped,
beaten, robbed, or hurt by someone, only through the shimva a case is initiated for justice. The way of legal procedures
acceptable in Tangkhul society in the olden days is due to the behavior of the
people. These ways of procedure to access justice are impractical in modern
society. Thus, the legal personality is a very important matter to discuss for
further study.
Justice is always in the form of restoration
to society. Any offenders, who commit a crime will be restored back into
society imposing a shongran[32].
This is the way a perpetrator of any crime is placed into their own life,
forgiven by the victim, and redeemed by the village court or the chief of the
village. Thus, the Tangkhul customary way of giving justice is restorative
justice.
7. CONCLUSIONS
In a people's group like Tangkhul, it
is hard to do such jurisprudential research. Written documents are scarcely
available to us. Some written books and literature by foreigners are a
narration of their visits and expeditions as travelers and agents to the
colonial British. The tradition of passing cultural norms and customs through
oral narration affects the availability of such norms. Some died along with the
people and few common sayings of the ancestors survive. Some of these concerns
may affect the understanding of the Tangkhul jurisprudence. But the present
prevailing practices passed down from ancestors and the customs in use in
day-to-day life help in preserving the culture and help to understand the
philosophy of Tangkhul jurisprudence such as rights, duties, justice, property,
land holding, persons, etc. which are legal concept necessary in understanding
the legal jurisprudence. It is obvious from the research that the Tangkhul
people migrated from Mongolia to China to Burma and finally settled in the
present area in parts of northeast India and Myanmar. Tangkhul people are
simple and have a high moral standard of life. Crimes do least occur rather
they enjoy social solidarity. Most of the social day-to-day life is not in the
study like the people concerned for the family when death occurs or
participation in marriage or festivals or other rituals related to crowning the
chief or Amei etc. Religion is very
important in Tangkhul society. Customs and norms arise from faith in the
supreme deity, that is Ameowa. Sharra is the commandment of Ameowa but it is rather a more broad
concept. Customs is a source of law in jurisprudence. Tangkhul has its exact word
‘wurtam’. In our society, customs are
accepted norms in the legal system. The Apex Court has accepted its prevalence
in giving verdicts in a case. The constitution of India has included customs in
the definition of law. Tangkhul customary law is a local custom as it is
confined only to the Tangkhul population. Wurtam
is codified into a law book in Tangkhul society due to its necessity in the
application and practices of the modern legal system. The necessity of its
development, legal, and application; a custom must be certain, simple, stable,
and uniformly applicable to all populations.
Rights are defined in different
words: for Salmond it is the protection of interests, for Holland, as the
capacity of individuals, for Austin as a faculty given by law, and for Kelsen,
it is legal norms. In Tangkhul jurisprudence, rights can be defined as norms or
capacity of individuals or self-expression to the dictate of reason, which he
has to fulfill his duties to claim. It is a given by Ameowa on obeying or keeping Sharra.
The concept of rights of Tangkhul jurisprudence more appropriately fits into
‘will theory’ rather than interest or benefit. As the rights come from the
dictate of reason or command of the sovereign. It can be considered as command
of the sovereign with sanction, command and sanction is in sharra and sovereign is the Ameowa.
The legal theory falls into either positivists or naturalists. But the state is
an essential element in law, this part way with positivists and joins with the
natural law. Sharra has a vital place
in Tangkhul jurisprudence. People
live under the dictates of sharra.
This is the supreme norm or law that governs the Tangkhul people. Not keeping
sharra will affect the life of violators and not only the individuals but the
people around him are cursed because of him. So the fear of breaking sharra is
very great. It is similar to Kelsen’s
grundnorm. Which is at the top of all norms and laws. Sharra is ‘law is’ and ‘law ought to be’. The concept of sharra is not of human ideas but it is from
the supreme deity, Ameowa. The
difference lies here, where Kelsen only works on what law is and the grundnorms
is from law itself. Every person is equal in status yet it is through the shimva, that one’s right is protected or
justice is accessed only through the head of the family. Legal personality is
one legal concept that needs to be studied properly.
[1] Hormi Makangwo, Origin Of The Tangkhul Naga And Their
Customary Law And Practices 110 ( Soyao Makang and Brothers, Imphal
2017).
[2] Id.
[3] R Vashum, A.S
Yaruingam, A.S Shimreiwung, & Yuimirin Kapai (Eds), Encountering Modernity
34 (Chicken Neck, New Delhi, 2014).
[4] T Luikham, Wung
(Tangkhul) Naga Okthot Mayonza 23 (1961).
[5] In the early time, Tangkhul people knew China by this
name. Many Tangkhul scholars like W.R. Shimray, T. Luikham, etc. used this
nomenclature in their writing.
[6] Wungnaosui
Ronra Shimray, Hau Awun Ramsom Phungphat 2 (2023).
[7] Ava is a
local Tangkhul name for Burma(Myanmar).
[8] Shimray, supra note 6 at 6.
[9] Wung, here,
refers to Tangkhul. In his book, he
used this term instead or along with Tangkhul.
[10] Riyan is
synonymous with the word constitution. It is a law that rules all the Tangkhul
people according to him in this book.
[11] Luichumnao
means the people who follow the same law or are protected by the riyan, equals with the word, citizens.
[12] Luikham, supra note 4 at 107-108.
[13] Smt. Ass Kaur
(Deceased) By L.Rs vs Kartar Singh (Dead) By L.Rs. & Ors, Civil Appeal
12395 of 1996.
[14] P J Fitzgerald,
Salmond On Jurisprudence 217 (Universal Law Publishing CO. Pvt. Ltd.,
New Delhi, 12th edn., 2007).
[15] State of Rajasthan
v. Union of India, A.I.R 1977 S.C 1361.
[16] Fitzgerald, supra note 14 at 218.
[17] W Friedmann,
Legal Theory 98, (Sweet & Maxwell, Fifth ed 1967, South Asian
Edition 2019).
[18] Shimray, supra note 6 at 102.
[19] Huimi Zimik,
The Tangkhul Naga Hau Primitive Religion 43 (2013).
[20] Shimray, supra note 6 at 102.
[21] Literally, it means ‘king of heaven’.
[22] It means ‘king of the earth’.
[23] Zimik, supra note 19 at 43.
[24] Friedmann, supra note 17 at 99.
[25] Id. at 100.
[26] Id. at 99-100.
[27] John Rawls, A Theory Of
Justice 334 (Universal Law Publishing CO.
Pvt. Ltd., New Delhi, 2nd reprint 2005).
[28] Fitzgerald, supra note 14 at 305.
[29] Rawls, supra note 27 at 60.
[30] Piba is the
head of a clan in a particular village.
[31] Shai means
a tax or tribute to the chief of the village.
[32] Shongran means
a punishment or penalty imposed by the village court to an offender.