Tribals and the law: India
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Ancient India
Dronacharya's conduct
From the archives of The Times of India 2010
Dronacharya's act was shameful, says SC
Dhananjay Mahapatra, TNN, Jan 6, 2011, 03.46am IST
NEW DELHI: Dronacharya, Guru of Pandavas and Kauravas in the epic Mahabharata, came in for some harsh contemporary scrutiny in the Supreme Court, with the apex court terming as shameful his action in seeking the right thumb of tribal Eklavya to clear the way for his favourite, Arjun, to emerge as the best archer of the times.
"This was a shameful act on the part of Dronacharya. He had not even taught Eklavya, so what right had he to demand 'guru dakshina', and that too of the right thumb of Eklavya so that the latter may not become a better archer that his favourite pupil Arjun?", asked a bench comprising Justices Markandey Katju and Gyan Sudha Mishra. For them, the episode in the Adiparva section of the immortal epic constituted the "well well-known example of the injustice" to tribals.
The scathing observation on Dronacharaya was part of an order by the bench that sought to do justice to a young tribal woman who was paraded naked. The bench lavished praise on tribals and proclaimed them to be superior to non-tribals in many ways, stressing that it was time the present generation stopped robbing them of their forests and hills and undo the historical injustice inflicted on them.
The case before the court related to four persons beating up a young Bhil woman and then parading her naked in the village. They were convicted by a trial court in Ahmednagar, Maharashtra, and sentenced to one-year imprisonment. However, Aurangabad bench of the Bombay HC acquitted them. The SC bench, while allowing an appeal and upholding the conviction and sentence, expressed surprise over Maharashtra government's silence in not filing an appeal against such a incident.
The colonial era and after
An overview, as in 2022
Arghya Sengupta & Aditya Prasanna Bhattacharya, Dec 15, 2022: The Times of India
Jaipal Singh Munda was a remarkable man. A skilled orator, an Oxford graduate, Olympian and gold medallist in hockey, Munda was a passionate advocate for tribal rights in the Indian Constituent Assembly. The atmosphere in the Assembly was hostile to tribals.
Ambedkar, adopting the borrowed language of eugenics, had earlier said of tribals: “Thirteen million people living in the midst of civilisation are still in a savage state, and are leading the life of hereditary criminals!” He was opposed to any reservation for tribal persons in legislatures because he felt that “they had not developed any political sense to make best use of their political opportunities.”
Nehru disagreed but patronised them through safeguards: “Every care should be taken in protecting the tribal areas, those unfortunate brethren of ours who are backward through no fault of theirs.”
But Munda did not ask for the charity of the Constituent Assembly: “What my people require, Sir, is not adequate safeguards as Pandit Jawahar Lal Nehru has put it … We do not ask for any special protection. We want to be treated like every other Indian.”
Seven decades on, has this wish been fulfilled? Today, a tribal lady, of which there were none in the Constituent Assembly, is the President of India. Despite all laws finally being enacted with her assent, the legal system continues to treat the tribal person as belonging to an “uncivilised race”. This happens in three ways.
First, there are many pre-Independence laws that exhibit a deep-seated prejudice towards tribals and continue to remain in force.
The Sonthal Parganas Act, 1855 is a classic example. Enacted as a response to the Santhal uprising against the East India Company, the Act excludes certain districts in the erstwhile Bengal Presidency from the application of the ‘general Regulations and Acts of Government’.
The Act is based on a simple premise – Santhals are too ‘uncivilised’ a people to be governed by the legal system. This is not an inference – it is stated explicitly in the preamble of the Act.
The leaders of the Santhal uprising were Sidhu and Kanhu Murmu, heroes who have rarely featured in any Indian history book. Ironically, the Sonthal Parganas Act, 1855 remains prominent in another book – the Indian statute book.
Second, the cocktail of protectionism and prejudice continues with post-Independence laws. Introduced in 1952, the Habitual Offenders’ Model Bill replaced the Criminal Tribes Act, 1871 and served as the basis for state-level Habitual Offenders’ Acts.
The 1871 Act described certain tribes as ‘addicted to the systematic commission of … offences’ and enabled the government to notify them as ‘criminal tribes’. Using this power, nearly 200 tribes were branded hereditary criminals.
With the repeal of this Act, the ‘criminal tribes’ came to be ‘de-notified’. As one would expect, the Habitual Offenders’ Acts, unlike their colonial counterpart, do not explicitly single out these tribes. However, in practice, not much has changed.
In almost every state where Habitual Offenders’ Acts are in force, individuals belonging to the de-notified tribes have been disproportionately targeted. The substantive provisions are worryingly similar to those in the 1871 Act.
Take the Bombay Habitual Offenders’ Act, 1959 which is in force in Maharashtra. It empowers a district magistrate to prepare a register of habitual offenders and compel them to provide ‘such information as may be necessary’ to prepare the register. In effect, with tribal persons being targeted, this has meant that all kinds of data on tribes continues to be extracted from them with no regard for their privacy.
This includes photographs, fingerprints, footprints, palm impressions and iris scans. Just like its colonial counterpart, the Bombay Act bars courts from questioning the validity of any direction or order issued under the Act. Tribal persons continue to remain exhibits for the state machinery and not citizens.
Third, the old colonial idea of primitivism continues under the guise of protecting cultural autonomy. The Fifth and Sixth Schedules of the Constitution lay out a set of special provisions for tribal areas. Among other things, governors are empowered to prevent or modify the application of both central and state laws to these scheduled areas.
These areas were previously ‘typically and really backward tracts’ under the Government of India Act, 1919 and ‘partially and wholly excluded areas’ under the Government of India Act, 1935.
The Fifth and Sixth Schedules of the Constitution perpetuate the language, and more worryingly, the patronising logic of these colonial statutes – that there is a need to ‘protect’ the tribal population and ‘help’ them. If that means keep them in a state of permanent exception away from the regular legal system intended for all citizens, so be it.
This is not to say that it is not the duty of the government to address the social and educational backwardness affecting members of the tribal population. But the starting point cannot be one of protection or assimilation, but rather respect and equality.
Sardar Patel, echoed Jaipal Singh Munda and grasped this instinctively in the Constituent Assembly, “All the laws that have given them protection are there. But have they protected them?”
If the aim is to disrupt colonial continuities and decolonise our laws, the first step is to decolonise our minds.
Sengupta and Bhattacharya are Research Director and Research Fellow respectively at Vidhi Centre for Legal Policy. Views are personal
Illustration by Ajit Ninan
Tribal laws
Chhattisgarh
TRIBAL COMMUNITIES AND THE LAW
This paper explains the relevant law subjects for the tribal communities.
This talk was delivered on 12th November 2013, while inaugurating the workshop on ‘AN ALTERNATIVE LL.B. CURRICULUM RELEVANT TO TRIBAL STATES' organised by IBA-CLE chair National Law School of India Unniversity, Baglore and Menon Institute of Legal Advocacy Training Trivandum in association with Guru Ghasidas central University Law School at Bilaspur Chhattisgarh
Professor Menon, ladies, and gentlemen,
Jai Johar, Namaste, and a very good evening to all of you.
Don't you think it is rather odd to inaugurate a workshop that had already begun three hours ago.
Well, I owe an explanation.
Today was a working day and I could not leave the court earlier; the other option was to decline the invitation.
I had met Professor Menon, a decade ago, in a workshop on the 'Role of Judicial Training Institutes' organised by the National Judicial Academy, Bhopal. Professor Menon was the Director of the same. I had heard a lot about him and his reputation, but had never met him. In a way, I was trying to judge him.
Professor Menon is a fine communicator and a good administrator; a person with clear understanding of law; he could sum up a session brilliantly; and better than the experts present: he turned out to be better than the reputation that he carries.
I, just could not decline his request to inaugurate the workshop. This is the reason for inaugurating the workshop at this time. However, there was another reason as well for coming here.
The brochure for the workshop indicates that the participants are among the Vice Chancellors, Deans of Law Schools, Senior Officials of Rural Development and Tribal Ministries and I could not deny myself meeting such an elite gathering.
Chhattisgarh is primarily a rural State and 80% of its population is residing in the rural areas. Scheduled Tribes and Scheduled Castes constitute more than 50% of its population. Scheduled Tribes population of the State is 10% population of Scheduled Tribes in our country; they are mostly forest dwellers and forty-four percent area of Chhattisgarh is covered by forest.
Chhattisgarh has natural resources and is a developing State. However, the incidence of poverty is high; more than double of the rest of the country though better than Orissa and Bihar.
And with these factors in background, where else, except Chhattisgarh, can a workshop—to make an assessment of legal needs of the rural communities in general and tribal communities in particular—be held; where else will it be better understood; the residents of which other State will benefit more than the residents of this State by such a workshop.
I am glad that it is being organised here and it gives me immense happiness to inaugurate the same.
During the next three days, you will deal with different aspects as indicated in the programme. It includes how legal aid is to be given; how the para-legal personnel are to be trained; and what kind of new courses should be included in the LLB curriculum. In this connection, I would like to make some suggestions.
CHAPTER-X AND SCHEDULE FIVE AND SIX OF THE CONSTITUTION
Part X of the Constitution is entitled as 'The Scheduled and Tribal Areas.' It has two articles, namely 244 and 244A. Article 244 is titled as 'Administration of Scheduled Areas and Tribal Areas'. Sub-clause (2) of article 244 {244(2)} provides applicability of sixth schedule to the administration of the tribal areas in the States of Assam, Meghalaya, Mizoram and Tripura. Sub-clause (1) of article 244 {244 (1)} provides applicability of the fifth schedule to the administration and control of the scheduled areas and scheduled tribes in any other State.
The basic feature of the Part X as well as 5th and 6th Schedule of the Constitution is to remove these areas from the purview of the general law of the land and
• To make the Governor sole repository of legislative power (5th Schedule) and to act on the advice of the Tribal Advisory council; or
• To hand over the functioning of these areas to the autonomous districts and regions (6th Schedule) and to be governed by the provisions mentioned therein.
In the words of Shri KM Munshi, this was done as 'the Adivasis or tribes were many in number; they belong to different ethnic, religious, and social groups. ... The Drafting Committee wanted that the Scheduled Tribes in the whole country should be protected from destructive impact of races possessing a higher and aggressive culture and should be encouraged to develop their own autonomous life: at the same time...to take a larger part in the life of the country adopted. They should not be isolated communities or little republics to be perpetuated for ever...object is to maintain them as unconnected communities which might develop into different groups from the rest of the country and that these tribes should be absorbed in the national life of the country.'
However this dream has remained unfulfilled. In order to fulfil it not only understanding of Chapter X and Schedule five and six of the Constitution is required, but it is also necessary to have better understanding of laws in some other areas; they are briefly mentioned in the subsequent paragraphs.
OTHER AREAS OF LAW (i) Customary law
After independence, Hindu Code Bill was introduced. It has four enactments: (i) HinduMarriageAct,1955;
(ii) Hindu Adoptions & Maintenance Act,1956;
(iii) Hindu Minority & Guardianship Act, 1956;
(iv) Hindu Succession Act, 1956.
These enactments are all pervading. Section 2 of these statutes provides their application. Broadly, they apply to all persons, who are domiciled in the territories to which these enactments extend—except Muslims, Christians, Parsis or Jews by religion.
However, sub-section (2) of section 2, excludes its application to the members of the Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government so directs. They are still governed by their customs.
Nevertheless, a customary law may not encourage undesirable social practices. The legislatures have enacted laws to discourage undesirable social practices. For example, Chhattisgarh State has enacted the Chhattisgarh Tonhi Atyachar (Niwaran) Act, 2005. It will be good idea to study their customary laws along with statutes enacted to discourage undesirable social practices.
(ii) PESA
Article 40 of the Constitution is entitled 'Organisation of village panchayats' and it is in Part IV of the Constitution, namely in the Chapter of 'Directive
Principles of State Policy'. It requires the State to organise village panchayats and endow them with powers and authority to enable them to function as units of self-government.
Part IX of the Constitution is entitled ' The Panchayats' and was added by the Constitution (Seventy -third Amendment) Act, 1992 to give effect to article 40 of the Constitution.
Article 243M is entitled 'Part not to apply to certain areas'. It excludes applicability of this part to the scheduled areas and tribal areas mentioned in article 244 of the Constitution. However, sub-clause (4) of Article 243M provides that the Parliament may, by law, extend the provisions of part IX to the scheduled areas and tribal areas with such exceptions and modifications as may be specified.
In pursuance of the power given by the Parliament under article 243M (4) of the Constitution, 'The Panchayats (Extension to the Scheduled Areas) Act, 1996' (PESA) has been enacted extending the provisions of Part IX of the Constitution relating to Panchayats to the Scheduled Areas with some exceptions and modifications as provided under section 4 of the PESA.
In pursuance of the PESA, the State may make a law for the scheduled areas. However, the State cannot make a law inconsistent with the features mentioned in section 4 of the PESA. Among others, section 4 envisages the following features:
(i) The customary law, social and religious practices and traditional' management practices of community resources;
(ii) Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, community resources and the customary mode of dispute resolution;
(iii) Before any plan, programme and project for social and economic development is taken up for implementation by the panchayat at the village
level it will require Gram Sabha approval;
(iv) Gram Sabha will also identify or select the persons as beneficiaries under the poverty alleviation and other programmes;
(v) Gram Sabhas or the Panchayts shall be consulted before making acquisition of land in the schedule areas for development projects and before resettling or rehabiltating persons affected by such project in the schedule areas;
(vi) Panchayats will be responsible for planning and management of minor water bodies in the scheduled areas;
(vii) The recommendations of the Gram Sabha or the panchayat will be mandatory before grant of prospecting licence or mining lease for minor minerals in the scheduled areas;
(viii) The Panchayats or the Gram Sabhas are specifically endowed with the ownership of minor forest produce and among others with the power to,
• Enforce prohibition or to regulate or restrict sale and consumption of any intoxicant;
• Prevent alienation of land and to take appropriate action to restore land unlawfully alienated;
• Manage village markets;
• Control over money lending to the scheduled tribes; and
• Control over institutions and functionaries in all social sectors, local plans and resources including tribal sub-plans.
It will be good idea to study the laws enacted in pursuance of PESA and see whether they comply with section 4 or not. It is important that section 4 of PESA as well as the laws consistent with it, are properly implemented.
(iii) Biological Diversity Act
The basic source of livelihood of ST is forest produce and it is equally important that not only biological diversity be conserved but the benefits arising from the same are equitably shared.
We were signatory to the Convention held by the United Nations Convention on Biological Diversity at Rio de Janerio in 1992. In order to give effect to the said Convention the Biological Diversity Act, 2002 was enacted. It provides for conservation of Biological Diversity; sustainable use of its components; and equitable sharing of the benefits arising out of the use of biological resources and knowledge.
Its impact is yet to be felt in our country. Its enforcement in full extent will help the Adivasis.
(iv) Forest Rights Act
The forest dwelling Scheduled Tribes and other traditional forest dwellers are integral to the very survival and sustainability of the forest ecosystem. A great injustice has been done by not recognising their rights over their ancestral forest lands and their habitats either during the colonial period or in independent India. It was in order to undo the injustice that the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
2006 (No.2 of 2007) or simply Forest Right Acts was enacted.
The Forest Rights Act envisages,
• Recognising, recording, and vesting the forest rights and occupation in forest land with the forest dwelling Scheduled Tribes and other traditional forest dwellers;
• Providing a framework for recording the forest rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land; and
• Strengthening the conservation regime of the forests while ensuring
livelihood and food security of the forest dwelling Scheduled Tribes and other traditional forest dwellers.
However, even after six years of its enforcement, nothing has changed. A report in the 15th November, 2013 issue of 'Down to Earth' magazine states that:
'lives of the forest dwellers have not changed much. Not one state has initiated concrete steps to officially register the title holders in the state land records. Without this they remain what they used to be―officially non-existent.'
Legal aid programmes should be undertaken to help them to claim their rights.
The author is evidently a legal luminary but his name has not been mentioned in the original.
