There are about 450 tribes and sub-tribes constituting 6.87% of the total population of India. There is a qualitative difference in the socio-political and economic status across tribes in the north-east, the Himalayan borders and in other parts of the country. The tribesmen in India are stratified, from highly sophisticated tribes to tribes that live in abject poverty. Due to the ecological conditions, geographical outlay with hills, valleys and plains, tribesmen are sometime isolated and often are enforced into isolation. This is partially due to poor means of communication, including mass communication. However, with exposure to the forces of change through the non-tribal population, Christianisation accompanied by higher education resulted in liberalised attitude towards social transformation. Advancement in Science and Technology has led to the socio-economic interdependence of the tribal with that of the non-tribal. And has to a certain extent resulted in the appropriation of their language and folklore.

Any study of the historical process of legal development must take into account the customary laws prevalent among the tribal population of India. It is important to make a distinction between law and custom as both are intimately connected to social formations. The term ‘law’ according to Pound is “social control through the systematic application of the forces of politically organised society (A.R. Radcliffe Brown, 1964). As the definition says, the sanctions enforceable by physical coercion of the state, where need be, have legal status. When people not socially recognised, have the privilege of using force indulge in such activities, it becomes gangsterism. Custom on the other hand, according to Kamarovsky is “socially prescribed mode of behaviour carried by tradition and enforced by social disapproval by its violation”. The custom of social control in tribal societies in different parts of India are divergent and need to be codified with reference to their customary laws.

While Malinowski’s observation that the tribal, as far as customs go, “obeys them slavishly, unwittingly, spontaneously, through ‘mental inertia’ combined with fear of public opinion or of supernatural punishment, if not of group instinct”, may have a grain of truth, the characterisation of the tribal on which this observation is based is questionable. In any case, if customs are defined as the sum total of rules, conventions and patterns of behaviour governing a society, then violation of the social norms, from toilet to death rites governed by differing expressions of social disapproval law of a tribe. The customary law being based on the experiences of a tribe respond to the ecology of the environment and social organisation of the tribe.

Radcliffe Brown maintains that the obligations imposed on individuals of society where there are any legal sanctions will be regarded as matters of custom and convention but not of law. In this sense, some simple societies have no law, although all have customs which are supported by sanctions (1952 : 212). The customs of tribal groups living in the Himalayas, those on the hills, and those on the plains and itinerant tribes are not the same. While in the sub-Himalayan areas one finds polyandry in certain areas one finds polygamy. Property rights wherever they exist often belong to the community rather than to an individual. Under those circumstances, the influence of more prominent men and women, advice of the elderly and the experienced, the social ridicule, the fear of Gods and witchcrafts are some of the mechanisms which counteract tendencies between deviancy and disobedience. But the advent of Christianity, quicker transport systems, establishment of educational institutions, and introduction of new technologies, has resulted in social change thus weakening traditional customary laws.

In societies which are divided in patrilineal and matrilineal terms, in terms of polygamy and monogamy, in terms of differing religious faiths, beliefs and practices, in terms of differing ethnicity, it is no wonder that common words like ‘husband’, ‘wife’ and such other kin terms, words referring to devolution of property rights and words referring to Gods and spirits are different. Thus, it is extremely difficult though not impossible to have a uniform secular code of law enforceable for all the tribals of the country.

In many communities the term for ‘mother’ and ‘mother’s sister’ are the same. The term for one’s own sister, is also used for wife’s sister. In such societies the ‘mother’s sisters’ are given the status and affection as ‘mother’ and one does not have jocular relation with ‘wife’s sister’, instead one views her as one’s own sister. As has been shown by Pattanayak in the discussion of Paranga kinship terms, when terms are borrowed from neighbouring communities through contact, they differentiate relations which were not differentiated hitherto. The borrowed term carries with it a suggestion of change in the behavioural pattern which is also borrowed from the donor culture. This motivates change in the customary laws of the society.