Shri Temjenchiba Longkumer & Ors. vs The Yaongyimsen Riongsanger Putu Menden & Ors.

The instant writ petition has been preferred by the Petitioners, who are 38 in number, praying for a direction to quash and set aside:-

Heard learned counsel for the Petitioners, Mr. Imti Longjem. Also heard Mr. T.B. Jamir, learned counsel for the R-1 & R-2; Mr. Imti Imsong, learned Additional Advocate General for the State Respondents R-3 to R-6 and Mr. Apok Pongener, learned counsel for R-7/Applicant in I.A. (Civil)/146/2025.

The case of the Petitioners as set out in the pleadings is that the Petitioners belong to the Ao Naga tribe of the State of Nagaland. They originally hail from Yaongyimsen village in the district of Mokokchung, Nagaland. Presently, the Petitioners are all residing in the district of Chumoukedima, Nagaland. The Petitioners, therefore, belong to a scheduled tribe and are indigenous inhabitants of the State of Nagaland.

The R-1 is the Putu Menden of Yaongyimsen village. The Putu Menden of Yaongyimsen village is known as the Yaongyimsen Riongsanger Tatar. The Putu Menden is also the Village Council in terms of the provisions of the Nagaland Village Area and Councils Act, 1978 (hereinafter referred to as the Act of 1978). The R-2 is an association/union of the citizens/villagers of Yaongyimsen village residing within and outside the village having extensive control over all Yaongyimsen villagers.

By a decision taken in the meeting of the R-2/Yaongyimsen Senso Mungdang held on 26.11.2024 and communicated by the office of the R-2 vide information dated 10.12.2024, the Petitioners have been excommunicated from the citizenship of the Yaongyimsen village. Furthermore, by the aforesaid information dated 10.12.2024, several illegal restrictions have been imposed on the Petitioners and also on their family members. The Petitioners are, therefore, aggrieved by the decision taken in the meeting of the R-2 held on 26.11.2024 and communicated by the office of the R-2 vide information dated 10.12.2024. It is the case of the Petitioners that the said decision had been taken with the approval and active participation of the R-1/Putu Menden.

In terms of the Act of 1978, the Putu Menden functions as the Village Council with the approval and under the supervision of the State Government. The Deputy Commissioner of the district and the concerned Sub-Divisional Officer (Civil) also has control and supervision over the functioning of the Village Council. The copies of the impugned information dated 10.12.2024 had also been served on the Deputy Commissioner, Mokokchung and the SDO(C), Changtongya. In spite of having knowledge of the illegal action taken by the R-1 and R-2 against the Petitioners, the State Respondents have not taken any corrective measures.

The Petitioners have stated that they originally hail from Yaongyimsen village in Mokokchung district but they have been residing in Chumoukedima for many years. On 26.10.1989, the heads of 19 families belonging to Yaongyimsen village residing in Chumoukedima decided to form an association known as the Yaongyimsen Senso Telongjem Chumoukedima, which was subsequently renamed as Chumoukedima Yaongyimsen Union. There is also another association/union known as the Yaongyimsen Senso Telongjem Dimapur, comprising of the Yaongyimsen villagers residing in the district of Dimapur. Earlier, the Yaongyimsen villagers residing at Chumoukedima were also members of the Yaongyimsen Senso Telongjem Dimapur as Chumoukedima was under Dimapur District before it became a full-fledged district. The issue of date of formation of the Yaongyimsen Senso Telongjem Chumoukedima led to a conflict between these two organizations.

Inevitably, there arose a dispute regarding the year of establishment of the Chumoukedima Yaongyimsen Union which claimed that the year of their establishment should be 1989. Whereas, the Yaongyimsen Senso Telongjem Dimapur was of the view that since the decision to allow the Yaongyimsen villagers residing in Chumoukedima to have a separate unit was taken only in the year 2001, the year of establishment of the Chumoukedima Yaongyimsen Union had to be taken as 2001.

Thereafter, many organizations and groups tried to resolve the dispute but failed and ultimately the matter was referred to R-1/ Yaongyimsen Putu Menden.

The R-1 by letter dated 01.03.2024 addressed to the Chumoukedima Yaongyimsen Union asked all the Yaongyimsen citizens of Chumoukedima to appear before it on 14.03.2024. However, the Petitioners did not attend the meeting and it was attended only by a few who were willing to accept 2001 as the year of establishment. In this meeting, the R-1 dissolved the office of the Chumoukedima Yaongyimsen Union and directed that the persons who were willing to accept the year 2001 as the date of establishment should run the affairs of the Chumoukedima Yaongyimsen Union. This decision of the R-1 was communicated through a circular dated 14.03.2024. In the said circular, it was mentioned that the 2001 group should start the new office by 31.03.2024 and whoever does not obey the direction would receive no cooperation from the Putu Menden.

Pursuant to the circular dated 14.03.2024, the group which accepted the decision of the R-1, i.e., the 2001 group, came to the houses of the office bearers of the Chumoukedima Yaongyimsen Union asking to hand over the files and documents of the Union. However, the office bearers refused to hand over the same. Therefore, a general meeting of the Chumoukedima Yaongyimsen Union was held on 18.03.2024 and in the meeting it was decided that the decision by the R-1 that the 2001 group should start the new office by 31.03.2024 could not be accepted and it was also decided that notice should be given to the effect that the R-1 has created division amongst the Yaongyimsen villagers residing in Chumoukedima and that if any untoward incident happened to them, the R-1 would be held accountable. As such, the said decision taken on 18.03.2024 was circulated vide circular dated 18.03.2024 and letter dated 18.03.2024 informing that the decision of the Putu Menden dissolving the Union was not accepted and also informing that if any untoward incident happened to the Chumoukedima Yaongyimsen Union members, the Putu Menden would be held accountable.

As a consequence, the Petitioner Nos. 12, 15 and 32, who had issued the letter dated 18.03.2024 and circular dated 18.03.2024 were summoned by the R-1 on 04.04.2024. Accordingly, 14 persons representing the Chumoukedima Yaongyimsen Union accompanied the Petitioner Nos. 12, 15 and 32 on 04.04.2024 while appearing before the R-1 and they reached the house of the head of the village (Ung Ki), as directed. During the meeting a commotion took place and there was a scuffle wherein some people were injured.

In this connection, the Petitioners further state that the Chairman of the R-7/Yaongyimsen Village Council filed an FIR at the Changtongya Police Station against the Petitioner Nos. 12, 15 and 32. The case was registered as Changtongya Police Station Case No. 003/24 U/s 143/506/323/34 IPC and the said criminal case is pending trial before the Chief Judicial Magistrate, Mokokchung.

Thereafter, the tussle between the 1989 group and the other group of persons from the Chumoukedima Yaongyimsen Union who had accepted the year of establishment as 2001 still continued. When the matter was situated thus, the impugned announcement was made by the R-2 in the 21.10.2024 edition of the Ao language daily “Tir Yimyim” excommunicating 42 persons residing at Chumoukedima, including the Petitioners and their families from the citizenship of Yaongyimsen village.

Additionally, the R-1 also published an announcement dated 21.10.2024 in the 22.10.2024 edition of the Tir Yimyim newspaper that the decision taken in the 31^st Yaongyimsen Senso Mungdang excommunicating the 1989 Chumoukedima group was the right decision. Furthermore, it was made known through this announcement that the issue shall not be taken outside the Yaongyimsen village. The Petitioner Nos. 12 and 15 also received a letter dated 03.11.2024 from the R-2 asking them to hand over all the documents and files relating to the Chumoukedima Yaongyimsen Union on 08.11.2024 at 10.00 AM. The letter also stated that if they failed to bring the documents and files on the said date, the Petitioner Nos. 12 and 15 would be responsible for whatever happens in connection with the said matter.

Since a threat was made by the R-2 vide letter dated 03.11.2024, the 42 excommunicated persons including the Petitioners by letter dated 04.11.2024 requested the Deputy Commissioner, Chumoukedima, the Deputy Commissioner of Police, Chumoukedima, and the Officer-in-Charge of Chumoukedima Police Station to ensure their safety and security by taking appropriate preventive measures.

The 42 families who were excommunicated also made a representation dated 21.11.2024 to the Chief Secretary, the Home Commissioner, the Commissioner, Nagaland, and the Deputy Commissioner, Chumoukedima against the illegal excommunication by R-1 and R-2 and requested the authorities to take appropriate action to restore their birthright as Yaongyimsen villagers. Further, similar representation dated 24.11.2024 was also made to the SDO(C), Changtongya.

In response the R-6/SDO(C), Changtongya by a circular dated 04.12.2024 informed all concerned to attend a meeting in his chamber on 09.12.2024 to discuss the formation of the Chumoukedima Yaongyimsen Union. The said circular dated 04.12.2024 was also given to the representatives of the 42 excommunicated families including the petitioners and also to the Chairman of the R-1/Putu Menden and the President of the R-2/Yaongyimsen Senso Mungdang. However, the representatives of the 42 excommunicated families including the petitioners could not attend the meeting on 09.12.2024 as they were informed that it would not be safe for them to come there.

On the next day, i.e., 10.12.2024, the R-2 circulated the impugned notification dated 10.12.2024. This information made known to the world the decision taken by the R-2 in its emergency meeting on 26.11.2024. However, the Petitioners’ stand is that they and their families were not informed about the emergency meeting on 26.11.2024. Further, they could also not attend because they were already excommunicated by the impugned Information dated 04.04.2024 by the R-1. The impugned information dated 10.12.2024 referred to the decision dated 26.11.2024 stating that if the excommunicated persons did not return within 7 (seven) days, i.e., from 27.11.2024 to 03.12.2024, they shall be excommunicated from the village citizenship forever. However, no information was also given to the Petitioners and their families by the R-1 and R-2 asking them to return within the aforesaid period. Thereby, through the impugned information dated 10.12.2024, the Petitioners and their families have been excommunicated from the Yaongyimsen village citizenship permanently. The Petitioners made a representation dated 14.01.2025 to the Chief Secretary, the Home Commissioner, the Commissioner, Nagaland, the Deputy Commissioner, Chumoukedima, and the SDO(C), Changtongya informing about the illegal excommunication and requested for appropriate action for cancellation of the illegal excommunication decision. However, no action has been initiated by the State Respondents till date.

The learned counsel for the Petitioners submits that their families have been punished with excommunication only because they exercised their right of choice, more particularly their right to freedom of speech and expression; freedom of association and freedom of movement as envisaged under Article 19 of the Constitution of India.

It is further submitted that citizenship of a person is dealt with under Part II of the Constitution of India and the Citizenship Act, 1955 and the citizenship of a person can only be taken away in accordance with the Constitution of India and the laws framed thereunder. The birthplace or origin of a person or his parents is an issue connected with the right of citizenship. Excommunication of a person from a community affects the right of citizenship also and the R-1 and R-2 have no authority in law to affect the citizenship of their villagers. The right to belong to a village is a right acquired by birth and such a right cannot be taken away by the R-1 and R-2. It is submitted that for an alleged action by the Petitioner Nos. 12, 15 and 32, several other members of the Chumoukedima Yaongyimsen Union and even their families have been excommunicated for no fault of theirs.

It is the submission of the learned counsel that by the impugned announcement made in the 21.10.2024 edition of the Tir Yimyim newspaper by the R-2 and impugned Information dated 10.12.2024, 42 persons and their families, including the Petitioners and their families have been excommunicated and several restrictions affecting their identity and citizenship have been imposed. Such a decision is totally against the provisions of the Constitution of India and the laws framed thereunder. Every person has a right to express his opinion and also to disagree. However, just because a person disagrees, his fundamental rights, more particularly, the rights guaranteed by Articles 19 and 21 of the Constitution of India cannot be infringed in the manner as it has been done by the excommunication decisions made by the R-2 and affirmed by R-1. As such, the announcement made by R-2 in the 21.10.2024 edition of the Tir Yimyim newspaper, and affirmed by the announcement dated 21.10.2024 by the R-1 and published in the 22.10.2024 edition of the Tir Yimyim newspaper are liable to be set aside.

The learned counsel has also submitted that the R-1 is the Putu Menden of Yaongyimsen village. Section 6 of the Act of 1978 provides that in Ao area the Putu Menden is recognized and shall function as a Village Council. Thus, the Putu Menden is not only a customary body but also a statutory body. The R-2 is not a statutory body but it exercises exclusive and pervasive control over the Yaongyimsen villagers and its citizens. The decision of R-2 was executed through the R-1. In the present case, the decisions against the Petitioners and their families have been taken jointly by the R-1 and R-2 and, therefore, the R-1 and R-2 are amenable to the writ jurisdiction of this Court. It is further submitted that no custom can override constitutional provisions or the statutes and further, customs cannot be opposed to public policy and morality. All laws including customary practices having the force of law in so far as they are inconsistent with Part III of the Constitution of India are void in view of Article 13 of the Constitution.

Learned counsel submits that the excommunication of the Petitioners and their families and the restrictions/prohibitions which have been imposed on the Petitioners and their families are wholly against the concept of human dignity embodied under Article 21 as well as under Articles 14 and 19 of the Constitution of India. Therefore, the impugned excommunication orders and the restrictions are illegal and cannot stand the test of law.

Learned counsel has relied on the following authorities in support of his submissions:

Learned Additional Advocate General, Mr. Imti Imsong, appearing for the State R-3 to R- 6 has also submitted that the act of excommunicating 42 persons and their families including the Petitioners, thereby denying their citizenship and depriving them of their rights is totally illegal as it infringes the fundamental rights of an individual which the Constitution of India has bestowed upon every citizen of India. He submits that the district administration has appealed to all the parties to resolve the matter amicably and has also appealed to the R-1/Yaongyimsen Putu Menden and the R-2/Yaongyimsen Senso Mungdang to revoke the order of excommunication. However, the matter is yet to be resolved.

Learned counsel, Mr. T.B. Jamir, appearing for the R-1 and R-2 has raised preliminary objections regarding the maintainability of the writ petition.

Learned counsel submits that the Putu Menden is a traditional customary body and is represented by the “Aula”, who is the traditional head of the Putu Menden and the Putu Menden is not represented by the Chairman of the Village Council of Yaongyimsen village.

It is submitted that the Putu Menden is a traditional customary body established as per the Ao Naga customs and traditional practice. The Senso Mungdang is also an association comprising of the citizens/villagers of Yaongyimsen village residing both within and outside the village. As such, both the Putu Menden and Senso Mungdang are not amenable to writ jurisdiction under Article 226 of the Constitution of India due to the reason that both the Senso Mungdang and the Putu Menden are not statutory bodies. They are neither a “State” nor an instrumentality of the State and as such, they do not come under the purview of Article 12 of the Constitution of India.

The Putu Menden and the Senso Mungdang are neither financially, functionally and administratively dominated by or under the control of the Government and the State does not have any pervasive control over the Putu Menden and Senso Mungdang so as to indicate that they are State agencies or instrumentalities of the State and cannot be termed as private bodies that perform public functions. He, therefore, submits that no writ can lie in so far as it relates to the action taken by the R-1/Putu Menden and the R-2/Senso Mungdang.

It is the submission of the learned counsel that the proviso to Section 6 of the Act of 1978 does not provide that the Putu Menden and the Village Council are one entity. In fact, the Putu Menden and the Village Council of Yaongyimsen village are two separate and distinct entities for the reason that the Putu Menden is a traditional customary body established as per the Ao Naga customs and traditional practices, whereas the Village Council, Yaongyimsen village, is a statutory body constituted as per the Act of 1978. As such, even if the Act of 1978 is repealed by the State Government, the Putu Menden will still continue to exist as a traditional customary body.

It is further submitted by the learned counsel that the challenge in the present writ petition does not relate to actions taken by the Putu Menden in exercise of function under the Act of 1978 but relates to actions taken as per customary practices and traditions.

It is further submitted by the learned counsel for R-1 and R-2 that the ‘Information’ dated 10.12.2024 issued by the R-2 was based on the decision made on 26.11.2024. However, the said decision dated 26.11.2024 which is the basic order has not been challenged by the Petitioners and only the subsequent information dated 10.12.2024 has been assailed. Further, so far as the writ petition Prayer No. (ii) is concerned, the said publication dated 21.10.2024 was already superseded by information dated 10.12.2024 and, therefore, Prayer No. (ii) of the petition is infructuous. It is the submission of the learned counsel that the R-1 has simply supported the decision of the Yaongyimsen Senso Mungdang by the announcement dated 21.10.2024 which was published in the newspaper on 22.10.2024 and, therefore, Prayer No. (iii) of the writ petition is also infructuous. As far as Prayer No. (iv) is concerned, the learned counsel submits that the information dated 04.04.2024 was only an interim order till an understanding was arrived at and, therefore, Prayer No. (iv) is also infructuous and the only prayer which needs to be examined by this Court is Prayer No. (i), which is the ‘Information’ dated 10.12.2024.

Learned counsel has submitted that the cases of Mangyang Lima (Supra), T. Chalukumba Ao (Supra) and K. Tia Longkumer (Supra) cannot be made applicable in the instant case as the learned Single Judge in these cases had never decided the question of whether the Putu Menden and the Village Council are one and the same entity. It is submitted that in WA/3/2019 the Division Bench of this Court, while disposing of the writ appeal had observed that the issue as to whether the Putu Menden is the Village Council or not and whether the Putu Menden exercises public function is kept open. Therefore, the learned counsel submits that the Putu Menden and Village Council being separate entities, and while the Village Council is amenable to writ jurisdiction being a statutory body under the Act of 1978, the Putu Menden is not amenable to writ jurisdiction.

Learned counsel further submits that assuming but not admitting that the Putu Menden is amenable to writ jurisdiction, it cannot be said that the power of excommunication is unconstitutional. By relying on the case of Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853, learned counsel submits that a Constitutional Bench in the cited case had held that the power of excommunication for the purpose of ensuring the preservation of the community has a prime significance in the religious life of every member of the group. It was further held that a legislation which penalizes this power even when exercised for the purpose above indicated cannot be sustained as a measure of social welfare or social reform. In this case the Supreme Court was considering the power of excommunication exercised by the Dawoodi Bohra community which exercised the power of excommunication as an integral part of the religious faith and belief of the Dawoodi Bohra community which was a religious denomination within the meaning of Article 26 of the Constitution of India and the petitioner who was the head of the said community had stated that the petitioner was the sole judge to exercise the power of excommunication in exercise of his position as the religious head which is a guaranteed right under Articles 25 and 26 of the Constitution. The Supreme Court upheld the power of excommunication by the head of the Dawoodi Bohra community. Similarly, in the instant case, the excommunication made by the Putu Menden was made in exercise of customary laws to preserve the sanctity of the village and hence protected by Article 29 R/W Article 371A of the Constitution of India which allows any group with a distinct language, script or culture to conserve it.

Further, learned counsel for the R-1 and R-2 states that the instant case can be differentiated from the case of Mangyang Lima (Supra), T. Chalukumba Ao (Supra) and K. Tia Longkumer (Supra) inasmuch as in those cases, the petitioners’ rights to contest elections and to exercise their franchise were being taken away by the excommunication. However, in the instant case, the Petitioners have no legal right to claim 1989 as the date of establishment of the Chumoukedima Yaongyimsen Union and, therefore, none of their fundamental rights have been violated.

It is also the submission of the learned counsel that the excommunication did not happen suddenly and all efforts to settle the dispute had been made through various organizations. However, the Petitioners remained adamant and refused to cooperate with the suggestions made by the R-1 and R-2 and, therefore, appropriate measures had to be taken under the customary law to maintain harmony within the villagers and to preserve the distinct culture of the village under Article 371A of the Constitution of India. Learned counsel submits that the Petitioners have not made out a case for this Court to interfere in its jurisdiction under Article 226.

In support of his submissions, the learned counsel for R-1 and R-2 has relied on the following authorities:

Learned counsel, Mr. Apok Pongener, appearing for R-7/Yaongyimsen Village Council submits that he had filed an interlocutory application which was registered as I.A.(Civil)/146/2025 through which he had prayed for deleting the name of the Yaongyimsen Village Council from the array of party respondents as the R-7/Yaongyimsen Village Council is neither a necessary party nor an appropriate party in the instant writ petition. Learned counsel submits that the present dispute is between the Petitioners and the R-1 and R-2 and the Village Council has nothing to do with the case.

Learned counsel submits that R-7 has not issued any of the impugned orders. He submits that R-7 had only filed the FIR dated 05.04.2024 in connection with GR Case No. 19/2024 which is pending trial before the Chief Judicial Magistrate, Mokokchung and which will run its own course as per law.

Learned counsel further submits that though the Act of 1978 provides that the Putu Menden in Ao area is recognized as a Village Council, the fact is that they are two separate bodies, inasmuch as the tenure of the members of the Village Council is for a period of five years as per the Act of 1978, whereas in the case of the Putu Menden the tenure is normally for a period of 30 years. The powers and duties of the Village Council are laid down in Section 12 of the Act of 1978 and the Village Council cannot travel beyond the laid down duties in Section 12. The impugned orders were issued by the R-1 and R-2 and he, therefore, submits that R-7 is not a necessary party in the instant case.

This Court has duly considered the submissions made by the learned counsel for the parties and perused the pleadings as well as the authorities relied upon.

Before examining the writ petition on merits, this Court would like to consider the objections raised by the R-1 and R-2 regarding maintainability of the writ petition.

The R-1 and R-2 have taken a specific ground that the R-1 and R-2 are separate and private entities and are not amenable to writ jurisdiction. In the affidavit in opposition filed by the R-1 and R-2, the respondents have stated that the State does not have any pervasive control over the Putu Menden and the Senso Mungdang so as to indicate that they are State agencies or instrumentalities of the State and as such they do not come within the purview of Article 12 of the Constitution of India.

R-7 has also filed an affidavit stating that the Putu Menden is totally different from the Village Council, and that the functions and duties of the village council are enumerated under Section 12 of the Act of 1978. R-1, R-2 and R-7 have stated that while the Village Council’s functions are related to governmental activities, the Putu Menden has nothing to do with the governmental activities but are concerned only with maintaining and preserving the customary practices of the village.

In the case of Board of Control for Cricket in India (Supra) the Supreme Court held that a body may not be a “State” in terms of Article 12 of the Constitution but will be amenable to writ jurisdiction under Article 226 based on its duties, functions and activities. The Supreme Court held that any organization or entity that has pervasive control over a section of the society cannot be said to be undertaking a private activity. Also in the case of Mangyang Lima (Supra) a Coordinate Bench of this Court held that a body exercising extensive control over social life of the villagers and having pervasive control with punitive and monopolistic regulatory power over the villagers, even if they are not governing bodies, they discharge duties which are public in nature. The Court held that such bodies, therefore, come within the domain of public law especially when it involves punishment like banishment and excommunication and, therefore, they are amenable to writ jurisdiction.

In the case of T. Chalukumba Ao (Supra) a Coordinate Bench of this Court held that a Putu Menden is amenable to writ jurisdiction. In the case of K. Tia Longkumer (Supra) a Coordinate Bench of this Court further held that if a proclamation involved severe penalties like social ban, restriction of movement, etc., a writ petition will lie.

Article 226 of the Constitution confers upon the High Court an extraordinary original constitutional jurisdiction to enforce fundamental rights and other legally protected rights. Writ remedy being a public law remedy its invocation presupposes a public law element, i.e., infringement of legally protected right and failure of public duty.

The following books: - “The Village Republic: A Case Study of the Ao Naga”, written by Bendangkokba, IAS; “Naga Society and Culture”, written by N. Talitemjen Jamir and Prof. A. Lanunungsang; and “The Ao Naga Oral Tradition” written by Prof. Temsula Ao have explicitly affirmed that the Putu Menden is the highest authority in an Ao village, and that the Putu Menden originated at Chungliyimti, the place from where all the Ao Nagas are stated to have originated centuries back. As per the Ao custom, the Putu Menden usually runs for a period of 30 years and it is succeeded by another Putu. Altogether there are five Putus which succeed each other and which has been the pattern since time immemorial. It is an established fact that even before the Act of 1978, the Putu Menden was in existence. It is also a fact that the Act of 1978 has recognized the traditionally established Putu Menden which would continue to function as Village Council according to respective custom and usage. In practice, however, the Putu Menden has a three-tier system which the Village Council does not have. In Ao villages the two institutions overlap sometimes. In fact all Putu Menden members can be Village Council members but all Village Council members may not be members of the Putu Menden. Some villages in the Ao region have two or more Putu Mendens depending on the ‘Khels’. There cannot be two village councils in one village, hence selected members from the two/three Putu Mendens would be Village council members. Further, under the Act of 1978 the tenure of the Village Council is only for a period of five years and the State Government also has the power to remove any member of the Village Council, whereas no such power is vested upon the State Government to remove any member of the Putu Menden who are inducted strictly as per the Ao customary laws and traditions. I am of the considered opinion, therefore, that the Putu Menden is a traditionally established institution whereas the Village Council is a statutory body established under the Act of 1978 and the two are separate entities, though the two institutions may overlap and sometimes some of the members may belong to both the Putu Menden and also the village council. As a Putu Menden, the members uphold the customs and traditions and enforce customary law and as village council the members function under the 1978 Act.

Applying the principle laid down in Board of Control for Cricket in India (Supra), this Court is also of the view that a writ petition under Article 226 of the Constitution of India can be maintained against a private institution/association even if it does not qualify as a “State” under Article 12. The decisive question is whether the private association/institution performs a public duty or public function and whether the impugned action has a public law element or whether the duty sought to be enforced is otherwise enforceable through a writ. In the case of Andimukta Sadguru vrs V.R. Rudani, (1989) 2 SCC 691, the Apex Court held that Article 226 is not confined to statutory authorities or instrumentalities of the State. A writ may pertain to a private body where a positive obligation or public duty exists. The nature of the duty rather than the form of the body is material. The Supreme Court famously observed that mandamus is a broad, flexible remedy designed to "reach injustice wherever it is found" and that technicalities should not be used to deny relief where a clear public obligation has been breached.

In the case of Shobha v. Muthoot Finance Ltd., 2025 INSC 501, the Apex Court further reiterated the importance of the “function test”. It was held that the courts must examine the function performed and the nature of the relief sought rather than deciding maintainability solely by classifying the institution/association as a public or private body.

In the context of a traditional institution like the Putu Menden exercising authority over members of a community/village, it has to be seen whether the body exercises authority recognized by customary law; whether its decision affect rights beyond a purely voluntary or contractual association; whether the impugned decision has consequences for civil status; access to public benefits; identity documents or other legally protected interests and whether the relief sought requires enforcement of public duty or protection against an exercise of authority having a public law character. The Yaongyimsen Senso Mungdang is also a private association/union of the citizens/villagers of Yaongyimsen village residing within and outside the village exercising control over all Yaongyimsen villagers. Therefore, the fact that an association is not a “State” under Article 12 is not by itself conclusive with regard to maintainability under Article 226. The Putu Menden is clearly a body which exercises authority recognized by customary law.

All the impugned orders and publications/’Information’ are interconnected, however, the restrictions imposed and conditions of excommunication are mainly contained in the impugned ‘Information’ dated 10.12.2024 which is simply a declaration of the decision taken in the meeting of the R-2/Senso Mungdang on 26.11.2024. The said ‘Information’ dated 10.12.2024 needs to be examined in order to ascertain whether the impugned decision has a public law element and whether the decision has consequences for civil status, access to public benefits, identity documents or other legally protected interests in respect of the Petitioners. The impugned information dated 10.12.2024 is reproduced here below:

A perusal of the said impugned information regarding the decision taken on 26.11.2024 would go to show that besides the excommunication the Petitioners and their families have been barred from having any marital ties with the other villagers, they have also been barred from using the name of the village, Yaongyimsen in their documents and certificates, and also barred from identifying themselves as Yaongyimsen villagers in any civil or social organizations and further the other Yaongyimsen villagers have been prohibited from extending any cooperation to the families of the excommunicated persons in times of death or celebration in their families. The impugned information dated 10.12.2024 conveying the decision dated 26.11.2024 has affected rights beyond a purely voluntary or contractual association and has consequences for civil status; access to public benefits, identity documents and other legally protected interests.

As held in the case of Board of Control for Cricket in India (Supra), this Court is of the view that the R-1 and R-2, though a private and traditional institution and association, their decision to excommunicate the Petitioners and their families and the restrictions imposed on them goes to show that they were performing public duties and more so, the impugned information dated 10.12.2024 and the other related orders and circulars will have detrimental consequences for the Petitioners and their families as far as their civil status as citizens of Yaongyimsen village is concerned; and also their identity documents such as Scheduled Tribe certificates, and indigenous inhabitant certificates and other legally protected interests. It is, therefore, reiterated relying on the principle enunciated in Andimukta Sadguru (Supra) and Muthoot Finance Ltd. (Supra), that the test does not depend exclusively upon whether the association/institution falls within the definition of “State” but upon the nature of functions discharged by the association/institution, the character of the duty sought to be enforced and whether the impugned action involved a public law element.

This Court holds that even if R-1 and R-2 are not government or statutory authorities, because of their pervasive control over the Yaongyimsen villagers in the State of Nagaland, and due to the consequences of the impugned decisions made by the R-1 and R-2, these bodies are amenable to writ jurisdiction. I am of the considered view, therefore, that the Putu Menden as well as the Senso Mungdang are amenable to the writ jurisdiction of the High Court under Article 226 even if they are not “State” within the meaning of Article 12.

We will now examine as to whether the actions of the R-1 and R-2 have violated the fundamental and legal rights of the Petitioners so as to warrant interference of this Court.

The Petitioners have claimed that their legal and fundamental rights have been infringed by the actions of the R-1 and R-2 who have tried to justify their actions on the ground that they applied customary laws which are not subject to the regular laws of the land and that they cannot be interfered with by the court of law.

In the case of Travancore Devaswom Board (Supra), the Supreme Court held that any custom cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and specific mandate of the constitution and the law made by parliament. No usage which is found to be pernicious and considered to be in derogation of law of the land or opposed to public policy or decency can be accepted or upheld by courts. Also in the case of Lakshmibai v. Bhawantbuva (Supra), the Supreme Court held that custom cannot override statutory law. It was further held that no custom is valid if it is illegal, immoral, unreasonable or opposed to public policy. No doubt Article 371A expressly protects Naga customary law and practice. Certainly, customary law occupies a strictly protected position in Nagaland, but such protection is only intended to preserve the distinctive social practices, traditions and customary institutions of the Naga people. However, the Constitutional protection cannot be considered as conferring an unrestricted power to oppose any form of sanction in the name of tradition. It is settled law that when a custom or usage has the force of law, Article 13 renders such laws void to the extent of inconsistency with Part III of the Constitution while Article 13(2) prohibits the State from making laws that take away or abridge fundamental rights. Pertinently, in the case of Mangyang Lima (Supra), the Coordinate Bench directly addressed the conflict between the customary practices and fundamental rights and held that the customary orders imposing banishment and excommunication violated Articles 19 and 21 of the Constitution. The Court also rejected the contention that Article 371A protected the impugned excommunication from constitutional scrutiny. The case of Mangyang Lima (Supra) is particularly pertinent because the judgment held that constitutional protection of Naga customary law does not by itself validate every sanction imposed in its name. This Court is also in agreement with this view. Further Article 29 of the Constitution cannot be read in isolation. It has to be read along with the other provisions particularly Part III.

This Court, therefore, arrives at a conclusion that Article 29 or Article 371A of the Constitution cannot be read as a blanket exclusion of judicial review over customary practices. The impugned customary orders have to be tested against the fundamental rights. Article 13 expressly covers customs and usages having a force of law. A purely social practice that does not have that character may raise a different question. Its enforcement can nevertheless be challenged when the facts establish a violation of a legally protected right.

Accordingly, if a Putu Menden or a Senso Mungdang expels a family including the children and if the impugned order affects their ability to claim their village identity; to return to their native village or to exercise other legally protected interests, the writ court certainly has the power to interfere. As contended by the Petitioners and also observed by this Court, the fundamental rights of the Petitioners and their families as guaranteed under Article 19 have been adversely affected by the impugned circulars and publications. The Petitioners and their families have the right to move freely throughout the territory of India and reasonable restrictions, if any; can be placed by the State only through a valid law. Such restrictions cannot be placed by another institution other than the State. It has been argued by the R-1 and R-2 that the excommunication has maintained the harmony in the village. But they have not been able to show how the harmony has been restored or what customary law was violated by the petitioners and their families. Further, not only the excommunication but severe restrictions have been placed on the Petitioners and their families with regard to their identity, more so when the wives and children of the Petitioners have nothing to do with the dispute. This Court has also observed that in the case of Sardar Syedna (Supra), relied upon by the R-1 and R-2, the petitioner was the head of a religious body known as the Dawoodi Bohra community. Such a religious organization/body can be differentiated from a traditional institution like the Putu Menden and therefore, the said cited case has no applicability in the present case. Moreover, the judgment in Sardar Syedna had been referred for reconsideration by a Constitution Bench in Central Board of Dawoodi Bohra Community (supra), and the issue was placed before the nine-judge Bench dealing with the Sabarimala reference which is awaiting disposal.

In the instant case, this Court is called upon to decide whether the actions/decisions/publications of the R-1 and R-2 allegedly taken on the basis of customary laws are legally and constitutionally valid and whether the impugned decisions/actions/communications are compliant with constitutional provisions. It is reiterated that the decision for excommunication and imposing restrictions on movement and usage of identity directed against the Petitioners and their families is not on the ground of violation of any religious norms so as to come within the scope of Article 26. It also cannot be protected under Article 29 or Article 371A of the Constitution as the excommunication and the restrictions imposed are violative of the fundamental rights of the petitioners and their families.

The impugned orders have been already held to have violated the fundamental rights of the Petitioners and their families and, as a result, the impugned information dated 10.12.2024 conveying the decision taken on 26.11.2024; the announcement made in the Tir Yimyim newspaper on 21.10.2024; the announcement dated 21.10.2024 published on 22.10.2024 in the Tir Yimyim newspaper and the information dated 04.04.2024 are set aside and quashed being violative of Articles 14, 19 and 21 of the Constitution of India.

It is further held that the R-7/Yaongyimsen Village Council is not a necessary party in this writ petition. This order also disposes of I.A. (Civil)/146/2025 and any interim orders passed earlier shall stand merged with this judgment.

This court has not adjudicated on the issue of date of establishment of the Chumoukedima Yaongyimsen Union as it involves disputed questions of facts. Any aggrieved party with regard to the date of establishment of the Chumoukedima Yaongyimsen Union is at liberty to approach the appropriate forum and the time spent in litigation before this Court shall be excluded from the computation of the limitation period by the appropriate court, if and when such suit is instituted.

The writ petition is accordingly allowed and disposed of.