Contextualizing legal aid to tribal societies

Dr Konbrailatpam Ratnabali *

The concept of legal aid as envisaged in the Constitution of India is to make justice accessible to all irrespective of the differences and diversity that exist across the country. Legal aid is meant to assist in crossing the physical, psychological, language and financial barriers to make justice accessible to those who are marginalized. But providing legal aid to a tribal society is not an easy task keeping in mind the complexity arising out of the co-existence of twin norms viz. the age-old tribal customary norms and the modern statutory laws.

The two laws are neither in harmony nor opposite to each other, but in a tangential relation. Such apposition of the two laws has impacted their lives and societies in myriad number of ways, creating not only a sense of confusion and alienation but resulting into noticeable injustice.

Tribal customary norms are not only part of their culture but also their identity as well. They govern every aspect of their lives. Any intent to nullify these norms or superimpose the mainstream law over these norms will have the potential of instilling threat to the tribal psyche.

On the other hand if the tribals are left to be governed by their own customary norms, which may not, at times, be in conformity with the principles of equality and justice guaranteed to all citizens, it will not only be at variance from the extant constitutional practices but also turn out to be an impediment to their development in future.

Whenever we think about such interventions, we need first to find out what is their need rather than what we think is their need. The whole core and focus of providing legal intervention in such societies is altogether different from providing legal aid to the underprivileged sections of the mainstream society.

In the mainstream society, legal aid tries to fill in the economic, information and sometimes language gap that exist in justice delivery system whereas in the case of tribal societies one has to start right from the point of carving their traditional rights within the realm of rights guaranteed by the country's legal system to making justice accessible to them.

One has to look through the sociological lens so as to understand how each of the legal rights, which are guaranteed to all the citizens, will fit into the context of the tribals. Any attempt to read, interpret and apply the law as is done in the mainstream society to the tribals will be infructuous.

For instance, the property laws, land acquisition laws, those dealing with rehabilitation of the displaced tribals, etc. recognize individual ownership of land but in most of the tribals societies their customary law recognizes community ownership. Therefore, if the mainstream law relating to land ownership is applied as such then such a law will never be fair, just and reasonable from their perspective. The resultant impact will be no different from the imperialism of one legal system over the other.

An effective legal intervention in the case of the tribals has to be multipronged.

It has to be operated at the following three levels: -
at the preliminary stage of defining the legal rights in the context of the tribals,
harmonizing the conflict between statutory laws and customary laws of the tribals,
providing 'legal aid' as understood in the general parlance.

One has to find a creative solution which balances the need to respect their customary laws and the demands of equality and human dignity. One alternative is to give recognition to customary law after eliminating elements which are not in consonance with the spirit of equality and human dignity.

As suggested by Fernandes and others whenever such an exercise is done, there should be room for public debate and discourse in order to find out an amicable and saturated generally accepted code. Such participation requires strong grass root level process of reflection by each tribal community.

An effective reflection will be possible only if they are able to know about the law on the other side, appreciate it, compare it with theirs and form an informed decision as to what part of their customary law should be propagated and what hues from the formal law should be imbibed so as to align their laws and society towards progress and development.