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
