Tribal Customary Laws: From Munda to Modern Times

Walk into a Munda village in Jharkhand and ask an elder why a piece of forest land belongs to a particular family, and you won’t get a land registry number. You’ll get a story about ancestors who cleared that patch generations ago. That story carries as much weight as any court document, because it is the community’s law, remembered and enforced without a single written statute. This is customary law, and it has shaped how tribal communities across India govern land, marriage, leadership and justice long before the modern state arrived.

What makes customary law different 🔗

Customary law is not a rulebook handed down by a legislature. It grows out of the everyday practices, beliefs and moral sense of a community. Members follow it because it feels right, not because a policeman is watching. Breaking a customary rule is treated as a moral failing, something that disturbs the social and spiritual balance of the group, rather than a crime to be punished by an outside authority.

This is what separates customary law from state law in tribal society. A Munda villager who violates a marriage taboo or fails an inheritance obligation is not simply breaking a rule. He is seen as damaging the trust and harmony that hold the community together. The consequences, whether social ostracism or a ritual penalty decided by the village council, are meant to restore that balance rather than simply punish an offender.

How anthropologists documented these laws 🔗

Much of what we know today about tribal customary law comes from painstaking ethnographic fieldwork carried out over more than a century.

S.C. Roy and the Munda 🔗

Trained as a lawyer, Sarat Chandra Roy moved to Ranchi to practise law and was struck by how little colonial courts understood tribal customs, religion and language. That gap pushed him to spend decades living among the Munda, Oraon and other communities of Chotanagpur, studying their oral history, kinship rules and social organisation firsthand. His 1912 work on the Munda remains one of the earliest and most detailed records of how a tribal community regulated land, family and leadership through custom rather than codified law. Roy is often credited as the father of Indian ethnography precisely because he treated customary law as something worth recording in its own right, not as a curiosity to be replaced.

Bhowmik, Mohapatra and Singh 🔗

Later scholars built on this foundation. P.K. Bhowmik and L.K. Mohapatra extended similar ethnographic attention to tribal communities in eastern India, documenting how customary norms governed inheritance, land use and community discipline in areas Roy had not covered. K.S. Singh, an Indian Administrative Service officer and anthropologist who later headed the Anthropological Survey of India, went further still. Alongside his landmark People of India project, Singh authored a body of work often described as his tribal trilogy, one volume of which was devoted entirely to tribal customary laws. Singh combined historical research with fieldwork, treating customary law as a living record of how tribal societies organised themselves before, during and after colonial contact.

The scope of customary law 🔗

Customary law is not limited to disputes over property. It touches nearly every part of tribal social and political life.

Land tenure and inheritance 🔗

Among most tribal communities, land was traditionally held and managed as a shared resource rather than individual private property. Rights to cultivate, forage or settle on land were tied to community membership and lineage rather than a deed. Common property resources, including forests, were owned and managed collectively, with customary rules deciding who could use what, and how disputes over boundaries were settled. Inheritance followed similar community logic: property typically passed along kinship lines according to rules the community itself recognised as fair, not according to any statute.

Leadership and dispute resolution 🔗

Tribal villages usually had, and in many places still have, a council of elders or a headman whose authority rests on custom and consensus rather than election or appointment by the state. These bodies settled disputes, decided punishments for wrongdoing and managed community resources. Their legitimacy came from being seen as custodians of tradition, not administrators of an external legal code.

Marriage, adoption and controlling erratic behaviour 🔗

Customary law also governs who can marry whom, how adoption is carried out within or across clans, and how a community deals with a member whose conduct threatens social harmony, whether through excessive drinking, violence or repeated dishonesty. These rules are rarely written but are known to every member of the community from childhood, passed on through practice rather than instruction.

Kinship as the organising principle 🔗

Two nineteenth-century scholars, writing continents apart, arrived at a similar insight about societies like these. Lewis H. Morgan, an American anthropologist known for his work on kinship and social structure, argued that early human societies were organised primarily around kinship relations rather than territory or private property. Henry Maine, a British jurist, made a parallel argument in legal terms. He proposed that early societies were built on status, where a person’s rights and duties were fixed by their position within a family or kin group, and that progressive societies gradually shifted toward contract, where obligations arise from individual agreement rather than birth.

Both observations map closely onto tribal customary law in India. A person’s rights to land, their marriage options and their standing in a dispute are shaped first by who their kin are, not by any individual negotiation. This is precisely why customary law and kinship cannot be separated when studying tribal organisation. The clan or lineage is not just a social category; it is the basic unit through which rights and obligations are distributed.

From village councils to constitutional protection 🔗

Customary law has not disappeared, but its reach has narrowed considerably as the modern Indian state extended its legal authority into tribal areas. Land disputes that were once settled entirely by a village council can now be taken to a civil court. Inheritance is increasingly shaped by statutory succession laws rather than clan custom. Yet customary law has not been erased. In several respects, the Indian Constitution and later legislation have tried to accommodate it rather than override it.

The Panchayats (Extension to Scheduled Areas) Act, 1996 is a clear example. It extends the Panchayati Raj system into tribal-dominated Fifth Schedule areas, but with a crucial difference: it gives Gram Sabhas in these regions additional powers to maintain their traditional governance systems, rather than simply imposing a uniform administrative structure. State panchayat legislation in Scheduled Areas is required to stay consistent with customary law, social practices and traditional resource management, an unusual instance of the state formally deferring to community custom. The Sixth Schedule goes even further in parts of the Northeast, where Autonomous District Councils hold real legislative and judicial powers over land, inheritance and customary practice, rather than merely advisory authority.

Even so, the balance has tilted. Members of tribal communities today are governed primarily by state law, with customary law functioning mostly at the local level, in matters the formal system either overlooks or chooses to leave alone. A tribal council might still settle a family dispute or decide how a piece of community land is used, but the same community’s members will just as often approach a police station or a court for matters that once fell entirely within the elders’ domain. Customary law survives, in other words, but as one legal order operating alongside the state’s, rather than the only one.

What do you think? As more tribal disputes move from village councils to formal courts, does something important get lost in translation, or does codification simply give tribal communities a stronger platform to defend the same customs? And in areas like PESA and the Sixth Schedule, is deferring to customary law a genuine form of self-governance, or a limited concession within a system tribal communities never designed?

References

1. https://en.wikipedia.org/wiki/Sarat_Chandra_Roy
2. https://www.epw.in/journal/2006/29/commentary/people-india-and-indian-anthropology.html
3. https://www.researchgate.net/publication/318432103_Community_Land_Rights_Customary_Tenure_in_India
4. https://en.wikipedia.org/wiki/Lewis_H._Morgan
5. https://en.wikipedia.org/wiki/Henry_James_Sumner_Maine
6. https://en.wikipedia.org/wiki/PESA_Act
7. https://www.pib.gov.in/PressNoteDetails.aspx?NoteId=156625&ModuleId=3&reg=3&lang=1
8. https://www.mha.gov.in/sites/default/files/PESAAct1996_0.pdf