RAM CHARAN JUDGMENT AND THE FUTURE OF TRIBAL CUSTOMARY LAW WHY STELLA KUJUR REQUIRES RECONSIDERATION

This Blog has been authored by Mr. Lakshay and Mr. Darshit Aggarwal (National Law University, Delhi)

Abstract

In light of the Supreme Court’s recent judgment in Ram Charan v. Sukhram, this blog re-examines the Court’s earlier reasoning in the Dr. Surajmani Stella Kujur case. The authors show that the Supreme Court’s assumption of custom, without proof of its existence, in the Dr. Stella Kujur case, while dealing with the vacuum in tribal marriage customary-laws, was wrongly placed. They submit that the framework of justice, equity, and good conscience should have been adopted by the Court when dealing with such vacuum in the customary law, to bring the silence in line with Constitutional morality.

INTRODUCTION

At the dawn of Greek myth, Themis stood beside Zeus with a pair of scales, weighing not only the acts of mortals but the customs they claimed as tradition. When those customs tipped the balance too far in favour of power, her task was to remind even the king of the gods that silence in law is not licence, and that true order requires justice, and not merely obedience cloaked as the way things are done.

In Dr. Surajmani Stella Kujur v. Durga Charan Hansdah, the Supreme Court did the opposite. It treated the silence of tribal customary law on bigamy as permission and presumed the pro-bigamy custom without even proof of its existence, thereby wrongly applying a non-existent customary law.

The interpretation and application of customary law as the applicable law concerning tribal affairs has been a long-standing point of debate and discussion in India. However, the recent judgment of the Supreme Court in the Ram Charan v. Sukharam case, dealing with tribal women’s inheritance rights, provides vivid clarity regarding the application of the doctrine of ‘justice, equity, and good conscience’, while interpreting tribal laws and customs. It held that when tribal laws and customs are silent on some issue, the same cannot be assumed. In such cases, the doctrine of justice, equity, and good conscience shall be applied, thus coming to a just and fair conclusion of granting inheritance rights to the women.

However, in contrast, the Court in the Dr Surajmani Stella Kujur case, dealing with a similar issue, took a completely different approach. The Court placed the onus on the defendant to prove that bigamy is prohibited by her tribal customs, without asking any such question from the appellant. In the absence of proof, it assumed the presence of bigamy customs, instead of considering it a vacuum and applying the doctrine of justice, equity, and good conscience.

The blog argues that the Stella Kujur judgment was erroneous in its interpretation and application of tribal customary law, and the assumption made while coming to the decision. Thus, the reasoning of the court in that case needs to be revisited.

THE LEGISLATIVE INTENT TO ALLOW CUSTOMARY PRACTICES

The tribal customary laws have evolved historically through changing social practices that regulated matters such as marriage, divorce, inheritance, adoption, etc., which challenges the idea that customary laws are immutable or arise in isolation. However, the customary laws that are recognised today were significantly shaped during the colonial period. The British administration constructed a dualistic model to govern the fragmented Indian population, which allowed tribal groups to follow an ostensibly immutable body of customary law. The colonial approach was frozen in time and restricted the natural evolution of tribal laws, which resulted in customs becoming rigid and often grounded upon patriarchal notions, with women’s rights being severely curtailed.

The framers of the Constitution and the legislators during the Hindu Code Bill debates sought to move away from the colonial understanding of customary laws. They envisioned that tribal communities should retain autonomy over their customs, while these practices must progressively evolve to align with constitutional principles of equality, dignity, and religious freedom.

Therefore, the drafters clearly intended that in situation where customs are available, tribal peoples could follow their respective customary laws to secure their autonomy on personal laws. But where the customs were silent on a particular subject matter, and where neither customs nor statutes were available to provide guidance, the common law principle of justice, equity, and good conscience would govern the dispute.

This framework was evident from the legislative intent and ensures that autonomy over customs would not operate in a vacuum but would remain within the limits of constitutional morality.

CURRENT JURISPRUDENCE

The judiciary has played a significant role in interpreting the scope of customary laws. The Supreme Court has repeatedly held that customs need to meet specific criteria of continuity, certainty, reasonableness, and public acceptance. In the absence of any such custom, the doctrine of ‘justice, equity and good conscience’ prevails.

Understanding of Custom

In the Thakur Gokul Chand v. Pravin Kumar case, the Court clarified that a custom must have been practised uniformly and consistently over a long period, along with clear proof of the same, to be called a custom, and along with the common consent of the community. Further, in Ratanlal Chunilal Samsuka v. Sundarbai Govardhandas Samsuka case, the Court held that the party claiming the existence of a custom must prove the validity of the custom clearly and without any doubt in interpretation. Such a custom must be reasonable and not against public policy.

Application of “Justice, Equity and Good Conscience”

The Mohd. Siddiq v. Mahant Suresh Das case, introduced the idea of ‘justice, equity, and good conscience.’ It held that when both legislative law and customary law find inapplicability, the Court shall apply the principle of justice, equity, and good conscience, to come to a fair and just decision. The principle was codified by Section 5 of the Central Provisions Law Act, 1875, and has helped the court to fill the gap in the areas where the application of law or customs leads to rigidity or unfair results.

Ram Charan Judgment: Application of equity when customs are silent

The recent Supreme Court judgment in the Ram Charan case exhibits a similar approach in cases concerning the silence of tribal customs on a particular issue. The Court was dealing with the question surrounding the inheritance rights of tribal women. The defendants denied the children (appellant), their mother’s share in the maternal grandfather’s property, claiming that by their customary laws, women can claim no such share.

However, in the proceedings, they were unable to prove the existence of any such custom of denying inheritance. Thus, as the Court recognised, there was a vacuum present, to address which, the Court used the principle of ‘Justice, Equity and Good Conscience.’ The Court, overturning the decision of the Chhattisgarh High Court, held that the assumption made in favour of the denial of inheritance rights signified the dominant and continuing patriarchal thought of the society. In its opinion, the denial of inheritance to women will amount to injustice, and taking a stagnant approach will amount to ‘double-discrimination’ against women. 

PROBLEM WITH THE STELLA KUJUR JUDGMENT AND THE CORRECT APPROACH OF RAM CHARAN CASE

However, this approach of the Court comes in complete contrast to the approach in the Stella Kujur case. The Court placed a unilateral onus on the women defendant to prove that her tribal customs do not allow bigamy. The problem arose when the defendant was unable to prove the existence of such customs. The Court, instead of considering this to be a vacuum qua question of bigamy, assumed in favour of the existence of bigamy in the tribes, and held in the appellant’s favour. It never looked into the question of bigamy qua the tribes or asked the appellant to prove such existence. 

This approach is similar to the approach taken by the Chhattisgarh High Court in the Ram Charan case, where it assumed in favour of customs, denying the inheritance to women. Such an approach was heavily criticised by the Supreme Court as patriarchal, while allowing the appeal in favour of the woman’s children.

In light of the recent Ram Charan judgment, the Stella Kujur judgment needs to be revisited. In Stella Kujur’s case, the Court should’ve recognised the vacuum qua-bigamy question, without assuming in favour of bigamy. By considering and acknowledging it to be a vacuum, it should have dealt with the question of bigamy through the doctrine of ‘Justice, Equity and Good Conscience,’ thus reaching a more just and equitable decision.

CONCLUSION

In conclusion, he Stella Kujur judgment wrongly treated silence in customary law as permission, whereas Ram Charan adopts a sounder approach by refusing the reasoning and instead applying JEGC principles.

The courts should adopt a purposive interpretation that focuses on outcomes consistent with constitutional values. They should carefully examine claims of custom and place the burden of proof on the party asserting such custom. The courts must also recognise that customary laws evolve with changing social realities and therefore must be interpreted in a progressive manner.

Hence, where customs are uncertain, the doctrine of JEGC should be actively used to fill the gap in law, aligning it with constitutional values.