Author By- Aditya Ganesh
Christ University
“The tribes are not backward Hindus; they are not people to be civilized. They are people with a civilization of their own.”
— Verrier Elwin, The Tribal World of Verrier Elwin
Introduction: A Brief history of Tribes in India
For centuries, tribal communities in India, known as Adivasis, have upheld unique legal and governance systems rooted in oral traditions, familial ties, and community leadership. These practices prioritize social order via established norms, with village councils addressing conflicts and implementing decisions based on consensus. Land is owned collectively, and traditions guide the rules regarding usage and inheritance instead of formal legislation. These systems operate autonomously from government institutions and mirror the social organization and principles of each tribe. Even with the expansion of formal legal systems in the colonial and post-independence eras, tribal legal customs continue to thrive in numerous areas, maintaining local governance, continuity, and cultural identity.
“You cannot teach democracy to the tribal people; you have to learn democratic ways from them. They are the most democratic people on earth.”
— Jaipal Singh Munda, Constituent Assembly, 16 December 1946
Tribal Customary Laws and Judicial Systems
Customary laws within India’s tribal groups are intricately linked to their lifestyles and are upheld via local judicial systems that function independently of the official court framework. These regulations are not formally written but are clearly recognized within the community, transmitted orally and practiced reliably. They oversee a wide array of topics, such as marriage, divorce, inheritance, property rights, and dispute resolution. Legal power usually lies with traditional councils or elders, whose decisions are honored and upheld through social customs rather than legal enforcement. For example, in the Santhal community, conflicts are addressed by a group called the manjhi hadam, a traditional assembly headed by the village leader (manjhi), which resolves issues through restitution or community work instead of imprisonment or penalties.
Every tribe possesses a unique set of traditional laws influenced by its cultural environment. The Nagas in Nagaland possess clearly established village councils that hold quasi-judicial power according to the state’s Village Council Act of 1978. Their traditional law differentiates among various forms of homicide(deliberate, unintentional, and provoked)and allocates compensation accordingly, frequently settled in livestock or cultural items. Within the Gond tribes of central India, property is typically passed down collectively among family members, and disinheritance is uncommon unless an individual is excommunicated. The Bhils utilize panch patti justice, in which five esteemed elders resolve disputes, frequently referencing tribal myths and rituals in their deliberations. In Meghalaya, the Khasi and Jaintia tribes adhere to matrilineal inheritance, transmitting property via the female lineage, while their village durbars function as local courts for resolving civil and social issues.
Judicial systems in tribal communities prioritize reconciliation rather than conflict. Hearings take place in public areas, ensuring openness and involvement from the community. No lawyers or formal documents are present—just spoken evidence and a collective grasp of ethical and moral standards within the cultural setting. Sanctions frequently include penalties, short-term exclusion, or ceremonial cleansing instead of incarceration. Significantly, numerous of these systems adjust to societal shifts while preserving their core principles. In regions of the Northeast like Mizoram and Meghalaya, traditional courts operate alongside the autonomous district councils created under the Sixth Schedule of the Constitution, providing legal acknowledgment to tribal justice systems. In contrast, in some areas, particularly central India, these practices function informally, receiving minimal assistance from the government. Nonetheless, tribal judicial systems continue to be an essential component of governance, providing justice models that are community-oriented, culturally appropriate, and frequently more accessible than formal courts.
Conflicts with State Law: Undermining Tribal Autonomy
Disputes between tribal customary laws and the formal legal system frequently occur when the principles and practices of indigenous communities conflict with those established by state or national laws. A significant source of conflict is the ownership of land and rights to resources. According to tribal customs, land is typically owned and managed collectively based on established traditional usage practices. Nevertheless, the legal system of the state relies on personal land titles, frequently disregarding customary claims. This has caused extensive displacement of tribes due to mining, dam building, and deforestation initiatives. In Chhattisgarh, the rights of tribal land have been ignored due to state-approved acquisitions for mining firms, even though traditional laws forbid the sale of tribal land to non-tribals. The PESA Act (1996) requires that Gram Sabhas be consulted in Scheduled Areas; however, implementation has been uneven, and tribal decisions are frequently overlooked in practice.
A significant area of dispute pertains to criminal and personal laws. Tribal justice systems usually handle criminal cases like theft, adultery, or assault via community restitution and reconciliation, whereas the Indian Penal Code requires a standardized set of punishments. This discrepancy is particularly concerning when traditional justice opposes constitutional safeguards, especially in instances related to women’s rights or child marriage. In regions of Jharkhand and Odisha, tribal councils have faced criticism for maintaining rulings that violate women’s legal rights, including denying them inheritance or the ability to pursue legal divorces. Although some view these rulings as forms of cultural expression, they frequently infringe upon constitutional rights of equality and due process. The judiciary in India has declined to accept decisions rendered by tribal councils as legally enforceable, resulting in a dual system where state laws and customary laws coexist in conflict, often undermining tribal autonomy.
Cases involving Indigenous Legal Action and its Impact on the Country
1. Samatha v. State of Andhra Pradesh (1997)
Problem:
The Andhra Pradesh government leased tribal land in Scheduled Areas to private mining companies, which was challenged by Samatha, an NGO, on the grounds that it violated the Land Transfer Regulation Act, 1959 and Fifth Schedule protections. The petitioner argued that tribal land cannot be alienated to non-tribals or private entities.
Verdict:
The Supreme Court held that all land in Scheduled Areas is constitutionally protected and that the transfer or lease of such land to non-tribals is invalid. It ruled that only government bodies or tribal cooperatives may undertake mining operations, provided they do not violate tribal autonomy and constitutional safeguards.
Impact:
The verdict affirmed the inalienability of tribal land and strengthened the application of the Fifth Schedule. It has since become a cornerstone case for environmental and tribal rights advocacy, reinforcing the principle that economic development must respect tribal land customs and legal protections.
2. Orissa Mining Corporation v. Ministry of Environment & Forests (2013)
Problem:
Vedanta Resources proposed a bauxite mining project in the Niyamgiri Hills, sacred to the Dongria Kondh tribe. Despite tribal opposition, the Odisha government cleared the project. The issue was whether tribal religious and cultural rights under the Forest Rights Act, 2006, could be overridden.
Verdict:
The Supreme Court ruled that the Gram Sabha has the final say in deciding whether the mining project violates forest rights and religious practices of the tribal communities. It directed that the affected Gram Sabhas conduct independent consultations and submit their decisions to the government.
Impact:
This case marked a watershed in recognizing community-led environmental governance. It validated the legal weight of tribal religious and cultural rights, empowering Gram Sabhas as constitutional units capable of vetoing large-scale industrial projects. It also elevated the Forest Rights Act to a central role in tribal governance.
3. Tirith Kumar & Others v. Daduram & Others (2024)
Problem:
A woman from the Sawara tribe in Odisha was denied ancestral land inheritance under tribal custom, which recognizes only male heirs. She filed a case seeking her rightful share, arguing that this customary exclusion violated her fundamental rights under Articles 14 and 15 of the Constitution.Verdict:
The Court acknowledged that the Hindu Succession Act, 1956 does not automatically apply to Scheduled Tribes, as per Section 2(2). However, invoking principles of justice, equity, and good conscience, the Court ruled in favor of the woman and awarded her equal inheritance rights.
Impact:
This case established a precedent for evaluating customary law through a constitutional lens, especially regarding gender justice. It demonstrated the judiciary’s evolving approach to harmonizing tribal autonomy with fundamental rights, opening the door for future challenges to exclusionary customary practices without undermining indigenous identity.
Bridging The Gap: Understanding The Uniform Civil Code Through The Lens Of The Tribal Communities
Conclusion: Adaptability of Tribal Customary Laws to Modernisation
Tribal customary laws, rooted in oral traditions and ancestral practices, have demonstrated impressive flexibility in addressing contemporary issues. Rather than remaining unchanged, these laws have developed to respond to modern conditions like education, government relations, and access to legal rights. In Nagaland, numerous village councils—legally acknowledged under the Nagaland Village and Area Councils Act of 1978—have created documented records of decisions, thus establishing semi-formal legal repositories while continuing to address conflicts via traditional customs. In Chhattisgarh, the Gond and Baiga tribes have started utilizing smartphones and WhatsApp groups for real-time communication of decisions and conflict mediation, especially involving youth and migrant individuals. In certain regions of Jharkhand, local panchayats have embraced the documentation of land disputes through NGO assistance, merging traditional judgments with official records to mitigate exploitation.
Adaptability is visible in the way tribal legal systems address calls for gender justice and environmental safeguarding. Within the Khasi community in Meghalaya, which has historically been matrilineal yet dominated by males in leadership roles, there is increasing backing for women’s involvement in the village durbar, influenced by urban education and internal advocacy. In Odisha, the Dongria Kondh, who successfully opposed Vedanta’s mining initiative in the Niyamgiri hills, have since integrated environmental advocacy into their customary governance. Their Gram Sabhas now conduct regular sessions not just for settling disputes but also for planning forest conservation. These instances demonstrate that tribal legal systems can achieve internal reform and strategic adaptation when modernization is pursued cooperatively instead of enforced from higher authorities. In doing so, they preserve their cultural foundations while expanding their relevance in contemporary governance.
References
Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191.
Orissa Mining Corporation Ltd. v. Ministry of Environment & Forests & Others, (2013) 6 SCC 476.
Tirith Kumar & Ors. v. Daduram & Ors., Supreme Court of India, Civil Appeal No. 13 of 2024.
Ministry of Tribal Affairs. (2006). The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Government of India.
https://tribal.nic.in/FRA/data/ForestRightsAct2006.pdf
Ministry of Panchayati Raj. (1996). The Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA). Government of India.
https://panchayat.gov.in/documents/20126/0/PESA+Act.pdf
Government of Nagaland. (1978). Nagaland Village and Area Councils Act, 1978. Kohima: Government Press.
Elwin, V. (1960). The Tribal World of Verrier Elwin. Oxford University Press.
Xaxa, V. (1999). Tribes as Indigenous People of India. Economic and Political Weekly, 34(51), 3589–3595.
Constituent Assembly Debates. (1946, December 16). Speech by Jaipal Singh Munda. Government of India.
https://cadindia.clpr.org.in/
Barik, S. (2023, July 22). Beyond the Civil Codes: Why Tribals Oppose UCC in Scheduled Areas. The Hindu.
https://www.thehindu.com/news/national/beyond-the-civil-codes-why-tribals-oppose-ucc-in-scheduled-areas/article67095717.ece
Haimendorf, C. V. F. (1982). Tribes of India: The Struggle for Survival. University of California Press.
Rao, V. (2002). Customary Law and Modern Governance in Tribal India. Indian Anthropologist, 32(2), 51–67.
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