INTRODUCTION
The Indian Constitution was designed to treat fundamental rights review as universal, so that any state action can, in principle, be tested against Articles 14, 19 and 21.[1] But Article 371A complicates that matter. It does not completely exempt Nagaland from the Constitution, but rather withdraws Naga customary law from Parliament’s ordinary legislative comp
etence unless the State’s Legislative Assembly consents by resolution, while leaving judicial review formally available even though the absence of codified text means it is rarely invoked in practice.[2] The result of this provision has led to a body of law that operates largely by oral tradition, decided by the village and tribal councils, rather than codified in text from which the court can measure it against the Constitution. This piece maps what 371A protects, why that customary law was never written down, how far courts have engaged with it, what can be said in its defence, and what the arrangement means for the supposed universality of equality doctrine.
WHAT 371A ACTUALLY SHIELDS
Article 371A(1)(a) provides that no act of Parliament can touch four subjects in relation to the administration of Nagaland: Naga’s religious or social practices, Naga customary law and procedure, the administration of justice according to that customary law, and the ownership and transfer of land and its resources unless the state’s Legislative Assembly consents by resolution.[3] The provision was inserted through the thirteenth amendment in 1962, giving constitutional form to the sixteenth point agreement between the Government of India and the Naga People’s Convention of 1960.[4] Clause 4 defines “Naga customary law” broadly, extending it to any matter connected with a person’s religion.[5] The effect caused by this situation is that the Parliament’s ordinary reach and the usual route by which national rights-protective statutes extend across the Union is obstructed at the assembly’s door by these 4 subjects.
THE CODIFICATION GAP
What makes 371A analytically distinctive is not just that it protects customary law, but the fact that the law it protects was never codified. Despite six decades of the provision’s presence, Nagaland has no official written compilation of Naga customary law; the practice varies by tribe and village, and experts have noted that it is being gradually eroded and reshaped by court decisions in the absence of settled text.[6] That is a structurally different issue from reviewing a written personal-law code, where a court can locate a rule and test it against Article 14. Here the review has nothing fixed to review; each court is asked to engage with what custom is, in a way reestablishing the rule as it goes. Naga civil society groups have repeatedly called for codification, so that 371A’s protections rest on an ascertainable body of law rather than unnotified custom, but the Assembly has adopted none.
JUDICIAL ENGAGEMENT AT THE MARGINS
It would be wrong to say that the courts stay out of Naga customary law completely, as they don’t. They just step in rarely and only at the exterior of the matter. In State of Nagaland v Ratan Singh, the Supreme Court upheld the continued application of the pre-existing Rules for the Administration of Justice and Police in the Naga Hills District.[7] The Gauhati High Court has separately held that the Civil and Criminal Procedure Codes govern regularly constituted courts in Nagaland without displacing the separate functioning of village and customary courts under 371A.[8] The most consequential recent engagement came through the litigation over women’s reservation in Nagaland’s urban local bodies. When the state invoked 371A to resist the one-third reservation mandated by Article 243T, the Supreme Court pressed it to identify an actual practice reservation would violate, doubting 371A could serve as a general-purpose shield absent such a showing.[9] The litigation began in 2012 and then converted into a civil appeal in 2016, closed in July 2024 once reservation-compliant elections were held.[10] The court did not narrow Article 371A but rather simply declined the state’s characterisation of what counted as a ‘protected custom’, a far more limited scrutiny than ordinary Article 14 review of legislation. The appeal had originated in a 2012 Gauhati High Court judgment on ward-wise reservation and was disposed of as infructuous once reservation-compliant elections were finally held, so the July 2024 order records compliance rather than a ruling on the substantive reach of Article 371A.[11] At an earlier hearing, the Court went further, stating that Nagaland’s personal laws and its special status under Article 371A(1) were ‘not being touched in any manner’ by the reservation mandate, the clearest signal that the provision does not shield institutions of local self-government the way it protects customary practice itself.[12]
EQUALITY DOCTRINE’S SUPPOSED UNIVERSALITY
Naga’s customary law, as widely reported, excludes women from rights to inheritance of ancestral land and has historically excluded them from bodies such as tribal hohos.[13] This is where the doctrine’s chance to intervene became visible. Under an ordinary reading of Article 14 and 15, provisions with that effect would be squarely reviewable. But these rules are customary rather than statutory, and 371A removes the parliamentary hook that typically applies rights-protective laws. As a result, these practices remain as a blind spot to the doctrine, not immune to text, since 371A does not purport to override Part III, but insulated in practice by the absence of a codified rule to challenge.[14]
Some experts argue that the doctrine of eclipse under Article 13 should apply straightforwardly, notwithstanding 371A.[15]
THE COUNTER-ARGUMENT AND ITS LIMITS
In the view of an opposing argument, subjecting Naga customary law to codification or testing against Part III risks hampering a living tradition into whatever a court or an outside compiler states at the given moment, converting self-governing custom into a text administered by others. That is close to what the outcome of the Sixteen-Point Agreement, and later the 2015 Framework Agreement between the Government of India and the NSCN-IM, were meant to avoid, Naga self-governance over matters the community treats as foundational to its identity, secured after decades of insurgency and negotiation.[16] Codification imposed from outside would not protect Naga custom so much as convert it into an ordinary statute subject to Parliament’s and the judiciary’s routine supervision, the very result that 371A was designed to prevent. The argument tracks a wider principle in indigenous-rights discourse that distinct legal institutions are entitled to survive rather than be absorbed into a majority legal order.[17]
The difficulty lies in the fact that the argument answers a different question than the one equality doctrine asks. Protecting a legal system from external assimilation is not the same as placing every rule within it to be beyond the reach of challenge by the people it binds. In Madhu Kishwar v State of Bihar, the Supreme Court dealt with a matter concerning tribal succession law, declining to abolish customary inheritance outright while pressing for reform so gender equality was not permanently sacrificed to autonomy.[18] The analogy holds because Madhu Kishwar confronted the same structural choice that Article 371A poses: whether an unwritten tribal succession custom, defended as an incident of self-governance, should be immunised from Part III scrutiny. If the same logic were to be applied to Nagaland, it would suggest that self-governance and codification are not actually in tension, the real obstruction is about who codifies it, and about writing the rules down. Codification led by Naga institutions themselves could preserve 371A’s core purpose while finally giving Article 14 something concrete to test.
A COMPARATIVE POSTSCRIPT
Article 371G extends a similar structure to Mizoram as that of 371A to Nagaland, and the Sixth Schedule creates Autonomous District Councils with their own structured jurisdiction over customary law in the Northeast.[19] Together, these describe a spectrum of constitutional accommodation for legal pluralism rather than a single anomaly. But 371A sits at the least legible end with no codified text, no settled appellate precedent testing custom against Part III, and no institutional trigger comparable to the Sixth Schedule’s councils. Equality doctrine’s claim to universality is, at minimum, qualified by this pocket of the Constitution, where review happens only when litigation forces it, and the rule under review is often unwritten until a court is asked to state what it is.
CONCLUSION
Article 371A illustrates a gap that equality doctrine has not been built to address: a category of law that is constitutionally shielded from Parliament yet almost never tested by courts, not because the Constitution exempts it from Part III but because it has no fixed text for a court to measure against Article 14. The provision itself does not bar judicial review; the absence of codification does, by leaving each case to first establish what the custom is before any comparison with constitutional guarantees can begin. Madhu Kishwar suggests a way past this impasse: subjecting discriminatory customary rules to constitutional testing without dismantling the community’s authority over its own law. Applied to Nagaland, that would mean codification led by Naga institutions themselves, not as a surrender of autonomy but as the precondition for the kind of scrutiny Article 14 promises everywhere else.
Author(s) Name: Neel Jain (S.V.K.M.s Pravin Gandhi College of Law)
References:
[1] Constitution of India 1950, arts 14, 15, 21; Maneka Gandhi v Union of India (1978) 1 SCC 248
[2] Ibid art 371A(1)(a)
[3] Ibid
[4] Constitution (Thirteenth Amendment) Act 1962; Moatoshi Ao and Sentikumla, ‘Customs and Law: Legal and Judicial Challenges in Naga Customary Law’ (2024) 30(11) Educational Administration: Theory and Practice 1645, 1646 <https://kuey.net/index.php/kuey/article/view/9735> accessed 08 July 2026
[5] Constitution of India 1950, art 371A(4)
[6] Ao (n 4) 1646–1647
[7] State of Nagaland v Ratan Singh AIR 1967 SC 212
[8] P PIUS LOTHA, ‘HAS ARTICLE 371 (A) BECOME REDUNDANT’ (Legal Eagle Elite, 01 September 2023) <https://legaleagleweb.com/articalsdetail.aspx?newsid=39> accessed 15 July 2026
[9] Awstika Das, ‘One-Third Women’s Reservation Bill for Urban Local Bodies Introduced in State Assembly, Nagaland Govt Tells Supreme Court’ (LiveLaw, 27 September 2023) <https://www.livelaw.in/top-stories/supreme-court-nagaland-womens-reservation-bill-urban-local-bodies-238784> accessed 16 July 2026
[10] Peoples Union for Civil Liberties (PUCL) v State of Nagaland (2024) Civil Appeal No 3607/2016
[11] Ibid
[12] Ibid
[13] Amrita Saikia, ‘Women and Women’s Quota in Urban Local Bodies in Nagaland’ (European Association of Development Research and Training Institutes, 27 August 2024) <https://www.developmentresearch.eu/?p=1941> accessed 16 July 2026
[14] Ao (n 4) 1648
[15] Ibid
[16] ‘NAGA CONFLICT’ (IAS Gyan) <https://www.iasgyan.in/daily-current-affairs/naga-conflict> accessed 16 July 2026
[17] UNGA, ‘Declaration on the Rights of Indigenous Peoples’ (13 September 2007) UNGA Res 61/295, art 34
[18] Madhu Kishwar and Ors v State of Bihar and Ors (1996) 5 SCC 125
[19] Erwin K Syiem Sutnga, ‘The Complexities of Articles 371A and 371G: Union-State Conflicts and Lessons from the Sixth Schedule’ (Highland Post, 01 February 2025) <https://highlandpost.com/the-complexities-of-articles-371a-and-371g-union-state-conflicts-and-lessons-from-the-sixth-schedule/> accessed 16 July 2026