HARMONIZING GENDER JUSTICE AND TRIBAL AUTONOMY: ADOPTING THE “LIVING CUSTOMARY LAW” DOCTRINE IN INDIA

AUTHOR – LIVI RIBA* & MS. SONAKSHI VARSHNEY**

* STUDENT AT AMITY LAW SCHOOL NOIDA, AMITY UNIVERSITY UTTAR PRADESH

** ASSISTANT PROFESSOR OF LAWAT AMITY LAW SCHOOL NOIDA, AMITY UNIVERSITY UTTAR PRADESH

BEST CITATION – LIVI RIBA & MS. SONAKSHI VARSHNEY, HARMONIZING GENDER JUSTICE AND TRIBAL AUTONOMY: ADOPTING THE “LIVING CUSTOMARY LAW” DOCTRINE IN INDIA, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 6 (6) OF 2026, PG. 134-145, APIS – 3920 – 0001 & ISSN – 2583-2344.

ABSTRACT

The constitutional structure of India is one which has just ensured gender equality and at the same time, the Indian constitution has provided a means of preserving the culture of the tribal groups as two imperatives that have long been considered as being mutually hostile. This is because, as argued in this paper, this perceived antagonism is unnecessary jurisprudentially and politically avoidable. This paper suggests a reformulation of the concept of the Living Customary Law doctrine as a principled approach to the Indian legal system by critically addressing it in the context of the South African constitutional jurisprudence which has formulated it in the most robust manner. The doctrine of Living Customary Law, as opposed to the traditional codification of tribal custom or blanket constitutional override, acknowledges the customary law as an organic, community-based system of norms that can internally evolve. This paper discusses the constitutional architecture of the Articles 13, 14, 15, 21, 244 and 342 of the Constitution of India, the Fifth and Sixth Schedules, the Panchayats (Extension to Scheduled Areas) Act 1996, and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2 New conceptual instruments such as a proposed Triadic Validity Test and a model of adjudicatory embedded in the community are provided to implement this doctrine in the Indian context.

Keywords: Living Customary Law, Tribal Autonomy, Gender Justice, Scheduled Tribes, Constitutional Law, Fifth Schedule, Sixth Schedule, PESA, Article 13, Customary Practices