Across
the country, the engagement of citizens with the Constitution appears to be in
direct proportion to the administration’s abandonment of it. That is why the
government is trying to criminalise the belief that it will deliver anything
more than it is doing already.
(Jharkhand): On the freshly tarred road from Ranchi to Ulihatu, where Birsa
Munda lived and which is now a prominent CRPF camp, several villages sport
newly painted green stone slabs at the entrance, covered with constitutional
provisions carved in white lettering. Protected by bamboo enclosures, these
stones – symbols of the Pathalgadi movement – are anywhere between 8 and 15
feet high. In the past year and a half, this movement has spread rapidly across
Jharkhand and the continguous areas of Chhattisgarh and Odisha. And the state
governments concerned are not pleased.
The preamble to the Indian constitution
asserts that “We The People of India.. Adopt, Enact and Give to Ourselves This
Constitution.” If the people gave rise to the constitution, it stands to reason
that they also gave themselves the right to interpret, analyse and propagate
its contents in any form they want to so long as this is done peacefully.
Nothing stops citizens from asserting their
fundamental rights by way of speeches or written pamphlets, or in stone pillars
outside our homes. There are thousands of statues across the country of Ambedkar
holding the constitution which serve not just as a reminder of his role in
drafting it, but as a symbolic assertion of the document itself – that it is
meaningful in people’s lives and it is they who give meaning to it.
Yet the Pathalgadi movement’s deep
engagement with the constitution has state governments panicked, perhaps
because it raises questions that they are finding hard to answer.
In March 2018, the
police arrested Vijay Kujur, a manager in the Shipping Corporation of
India, and working president of the Adivasi Mahasabha in Jharkhand, while in
May they
arrested Herman Kindo (a former IAS officer) and Joseph Tigga (an ONGC
ex-employee), the leaders of the movement in the Jashpur district of
Chhattisgarh. Kujur and others have been charged under Section 153 A (creating
hatred among people), 186 (obstructing public servants from duty), 120 B
(criminal conspiracy) among others.
However, repression has not been able to
deter the movement, which is now being taken forward by second rung leaders,
and indeed by ordinary villagers themselves. At least some of the energy in
Jharkhand comes on the back of anger
generated by the government’s attempts to change the Chhota Nagpur Tenancy
Act (CNTA) and the Santhal Parganas Tenancy Act (SPTA) to make it easier for
non-tribals and companies to take over adivasi land, as well as police firing
on those protesting land acquisition. While
the governor, Draupadi Murmu, returned the bills, the threat remains.
A
Pathalgadi meeting
On May 10, a friend and I set out to try
and understand the Pathalgadi movement in Khunti district of Jharkhand. To our
great luck, we chanced upon a meeting in one of the villages, being held under
a beautiful old banyan tree. People had come from as far afield as Seraikela,
Lohardaga, West Singhbhum, Ranchi, Gumla and of course, from other villages in
Khunti district itself. Some of them had
already established the pathals in their village, while others were excited at
the prospect of doing it soon.
One group told us that they had placed the
order for the slab – it would take a few weeks and would cost Rs. 8000. At the
meeting, an announcement was made that pathalgadi would take place in 11
villages on the 27th. Crowds of 500 or more go from village to village erecting
the stones. The atmosphere is both solemn and festive. Two young women told us
that at the last event they had gone to, they were wearing ordinary salwar
suits. But when they found all the other women wearing a traditional white sari
with a red border, they also decided to come in formal saris for all pathalgadi
events.
Most of those attending were men, but there
was a small sprinkling of women too. Many were taking notes, and had copies of
the constitution with them. Even thought the meeting lasted some three hours,
and involved interpreting difficult constitutional provisions, nobody was
bored; indeed, judging by their faces, they were deeply absorbed by the
proceedings.
At the centre of the meeting was Joseph
Purti, a former lecturer in Hindi in St Joseph’s College, Torpa. Wearing a
white turban, kurta and jeans, Purti was writing on a white board, inviting
comments and suggestions, much like an NGO or corporate breakout session.
Purti was carrying with him a copy of the constitution,
and a bound collection of papers titled Heavens
Light, Our Guide, consisting of random documents, some printed out on 10 or
100 rupee non-judicial stamp paper, including the Gujarat revenue rules, a newspaper
clipping reporting an Ahmedabad’s court rejection of the Navjivan’s Trust
request to keep Mahatma Gandhi’s will, and one particularly charming document
titled: “Orderly Agree: Not to be dishonesty, Scorn, A Denial, plundering,
Breach of Trust, Misappropriation, A Theft, Defamation, No deed of sale Estate
of 17/18/ 30-4-68 Crown’s Discretion”.
The pathalgadi people in this area are
followers of the Sati
Pati cult, started by Kunwar Keshri Sinh of village Kataswan in Vyara
taluka of Tapi district in Gujarat. Keshri Sinh’s son Ravindra Sinh now leads
the Sati Pati movement. As an edited volume by K.S. Singh, Tribal Movements in India, informs us, there have been many such
messianic and millenarian cults in adivasi areas, especially in South Gujarat.
The Sati Pati movement believes that adivasis are owners of the land, a right
that had been recognized by Queen Victoria. They refuse to pay land revenue,
vote, or take part in government schemes. In Gujarat, they appear to be patronised by
the ruling parties.
Purti’s lead into the Sati Pati sect seems
to have been a woman from Ulihatu who had gone to Gujarat; there are also several
commonalities between Birsa Munda’s millenarianism and Keshri Sinh’s. The
followers believe that their leader, Ravindra Sinh, has high-level links to the
president of India, judges of the Supreme Court and even dignitaries abroad.
Indeed, they attribute the four judges press conference to letters they had
sent to the Supreme Court regarding changes in the CNTA. It is both sweet and
sad that adivasis in a village in Khunti remote from Delhi believe that the
Supreme Court is responsive to them.
Like its parent, the Sati Pati movement, the
Pathalgadi movement too argues that the government is a servant of the people,
and makes much of the acronym – OIGS – on India Government Service. One of the
local leaders told us ruefully that the government officials had been
particularly incensed by being made to sit on the ground along with everyone
else when they came to meet the Pathalgadi people. The local thanedar told him
that he did not like being reminded constantly that he was a government
servant.
The Pathalgadi movement gained notoriety in
August 2017 when villagers in Bhandra panchayat had detained
superintendent of police Aswhini Kumar Sinha for
12 hours. In February 2018, they kept the police from Arki thana for a
while. The villagers said that they had only asked the police to come back the
next morning, which is not an unreasonable demand, given that in the
police-Naxalite confrontation, villagers are being randomly picked up from
their homes, with the families often not being told where they are being taken
and why. “Earlier we never asked the patwari or police why they had come to the
village – now because we ask, they are upset with us.”
The
judicial and the non-judicial
Another feature drawn from Heaven’s Light is the emphasis on the “non-judicial”
or the natural as against the judicial or man-made conventions. While some of
this appears outlandish, there is a strong kernel of truth to it, which
resonates with people whose daily lives have been made difficult by an ignorant
and indifferent bureaucracy.
As Purti explained it, the judicial
referred to laws made by the government and the courts, which had no
relationship to reality. He gave two examples: laws fixing the age of consent
at 18 and 21 which did not recognize puberty as a natural turning point; and
the arrest of villagers on charges of being Naxalites.
“There are so many Naxalite incidents, he
said, but instead of catching the actual Naxalites, the police pick up innocent
villagers, and frame false charges against them.” A recent study on under-trials in
Jharkhand by the Bagaicha Research team found that 97% of those arrested for
Naxalite offences had no connection with them.
“The courts have so many pending cases”,
Purti said, “but our gram sabhas do not have even one pending case. The
judicial system only grinds people down, it does not deliver justice.” In the
judicial system, “people come and ask us for our votes and then disappear.” Who
can argue with this?
The non-judicial, on the other hand, is
what actually sustains the country: the fields, the forests and the rivers; the
process of life itself. People grow crops on land they have carved out
themselves from the forest – and yet the government taxes them. They protect the forests and yet are fined for
using them. In listening to Purti, I was reminded of a poem by HDC Pepler:
The law the lawyers know about
Is property and land;
But why the leaves are on the trees,
And why the wind disturbs the seas,
Why honey is the food of bees,
Why horses have such tender knees,
Why winters come and rivers freeze,
Why Faith is more than what one sees,
And Hope survives the worst disease,
And Charity is more than these,
They do not understand.
An
adivasi bank and an adivasi educational board
The meeting had been called that day to
finalise the setting up of an adivasi educational board and an adivasi bank. Purti’s
job that day was to explain why the two were needed and what they would
achieve. The meeting was also addressed by a professor, Man Singh Munda, who
was preparing a Munda script.
The existing schooling system, they said,
had no place for adivasis. “We are taught fraud sanskriti in schools. In the formal religions we are taught in
schools, they turn humans into Gods and Gods into humans. They worship Gods for
three days and then throw the idols into the river. Who throws God away? For us
God is everywhere.”
Purti said “we are forced to compete in an
alien language and therefore pre-determined to fail. A people who loose their
language are bound to lose their identity.” The turn to Mundari would also have
concrete payoffs: “Many people ask us what is the point of learning Mundari
when we won’t get jobs. But if we have our own education board, our own schools
and colleges, our people will get jobs.”
As for an adivasi bank, it was needed
because the current banking system had no place for them. If they moved all
their money and kept it in an adivasi bank, they would be able to run their own
system better.
The meeting ended up with everybody
climbing a windswept hill positioned to look over a beautiful forested valley.
This is to be the site of the school board and the bank.
The
source of constitutional interpretation
The Pathalgadi movement varies from place
to place. In some places, they write the provisions of the Panchayats
(Extension to Scheduled Areas) Act 1996 (PESA) on the slabs. PESA asserts that
“every Gram Sabha shall be competent to safeguard and preserve the traditions
and customs of the people, their cultural identity, community resources and the
customary mode of dispute resolution.” Indeed, the inscription of PESA on stone
slabs, as well as the assertion that the gram sabha is the basis of self-rule
is a practice that dates back to an earlier wave of activism by former
bureaucrat Dr. B.D. Sharma, who was instrumental in crafting PESA, and the
Bharat Jan Andolan.
In other places, however, as in the Mundari
Khuntkatti areas of Jharkhand, the emphasis is on those features of the constitution
which give force to the existence of a special law like the Mundari Khuntkatti
tenure. The CNTA 1908 recognizes the Mundari Khuntkattidars’ special collective
ownership of the land. The Khuntkattidars argue that they do not hold land
under the state but in their own right, and the collective chanda they pay is tribute not tax.
Articles 13 (3), 19 (5) (6) and Article 244
(1) – which are inscribed on the slab collectively reinforce the legal exceptionalism
that underpins both PESA and the CNTA.
Article 13 or the inconsistency clause
which voids laws inconsistent with fundamental rights, defines law in 13 (3)
(a) as “any ordinance, order, bye-law, rule, regulation, notification, custom
or usage having in the territory of India the force of law.” This is taken to
mean that existing adivasi custom or law as defined by the village gram sabha
(insofar as it does not violate the Constitution) has the force of the constitution.
Article 13 (3) (a) is also written on village walls with the message that
village custom is their constitution.
Article 244 (1) notes that the provisions
of the 5th Schedule shall apply to the administration and control of
the scheduled areas and scheduled tribes (in central India). Under the 5th
Schedule, the Governor may direct that a law should not apply to a Scheduled
Area. Equally she/he can direct that a law shall apply to a Scheduled Area. In
most states, all laws enacted are automatically assumed to apply across the
state and there is no specific direction to apply them to scheduled areas. So
the Pathalgadi people argue that arresting people under laws which have not
been specifically enacted is illegal.
In either case, the governor must consult
the Tribes Advisory Council. The Tribes Advisory Councils rarely meet and governors
never submit annual reports to the president as they are required to, under the
5th Schedule. In this case, the government is in clear breach of the
constitution, but is never penalised.
Debating
constitutional interpretations
In the course of the meeting, the
organisers directly rebutted the claims that the administration was making in
its pamphlets and speeches, leading to much amusement among the participants. Distributing
the constitution is of little help to the government since it is the
interpretation and not the letter of the articles, which is being debated.
It is written on the slab that according to
Art 19 (5), outsiders are not allowed to live and work in adivasi villages
without permission. The administration’s pamphlet calls this unconstitutional
and violative of fundamental rights. A plain reading of Article 19 (5),
however, suggests that the villagers may be right and the administration may be
wrong, since the right to move freely, reside and settle in any part of India
may be restricted by existing laws in the interests of the Scheduled Tribes.
One of the complaints raised in the meeting
was that the administration was trying to flatten out their distinctive
identity, by threatening to take away reservations or by subjecting them to
uniform identity markers. Aadhar and voter IDs were problematic because they reduced
adivasis to “aam admi” while in
reality, the adivasis are “khas admi”
– distinct people, protected by distinct laws.
While the people are clear about where they
stand, the state has long been confused, as shown by its submission before the
Jharkhand high court on the Panchayati Raj act. Even as it denied the need for
specific laws for adivasis such as the Wilkinson rules which allow some
criminal powers to the village panchayats or any recognition of the Munda Manki
system of traditional headmen, it cited the authority of PESA which is a
constitutional law upholding adivasi custom. In truth, the current political
regime would like to take away protective laws for adivasis, but the political
costs are high.
On other counts, both the Pathalgadi folks
and the government seem equally confused. Even as they assert the constitution,
the Pathalgadi supporters believe that the provisions for excluded and
partially excluded areas in the Government of India Act 1935 may still be
considered to be in force (e.g. through the CNTA). When the government says
that this has been superseded by the constitution, the Pathalgadi people point
to the IPC, the CrPC, the Forest Act and other such acts which long predate and
even counter the democratic revolution the constitution was meant to have
ushered in.
Faultlines
and fissures
As we drove through the district, we also
found some villages which did not have pathalgadis and had no intention of
having it. One woman told us that it had taken her a year to convince the
people of her village to have a pathalgadi. While all the bhuinhari households (original settlers) were convinced, there were
others who were still holding out.
Some of the villages involved in the
movement have stopped taking government schemes, but others carry on with them.
The government sees this withdrawal from the state as threatening – after all,
they say, the CRPF, police and administration are only there to serve the
people. They also claim that its schemes have been chosen and are managed by
the gram sabha, and thus they have the same force that the Pathalgadi movement
wants. But one has only to look at the absurd pre-fabricated toilets that have
been installed across the district, with no water connection and shallow pits,
to see that these could scarcely have been a local priority.
At some point in the evening it began to
rain heavily, forcing my friend and I to return to Ranchi, leaving all difficult
constitutional questions for another day. But what was clear to us is that once
the people decide to read and interpret the constitution for themselves, it
will be hard to stop them. Claims to judicial or administrative expertise in
the reading of the constitution must always contend with the non-judicial
reality, and it is far better to have a dialogue on the constitution than to
arrest or repress people insisting that only the administration’s version of
the constitution will count.
