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The Constitutional Imagination of Scheduled Tribes - Reflecting on State Violence and Inaction

- Nitai Hinduja


The Manipur High Court’s ruling in Mutum Churamani Meetei v. The State of Manipur1 on 27 March 2023, recently criticised by the Supreme Court, directing inclusion of the Meitei Community as part of the designated Scheduled Tribes, has sparked widespread protest and violence. While such a determination is undoubtedly political and has brought to the forefront nascent and long lasting apprehensions, what is of particular importance is the state’s response to the protests. The Manipur Government issued shoot at sight orders, with the army and paramilitary forces being deployed in response to demonstrations held by the All Tribal Students Union of Manipur. This state induced violence has since escalated and continued, with multiple deaths of members of tribal communities being reported on a daily basis at the hand of state officials. There has also occurred widespread displacement of children as a result of the state violence, amidst the state ordered blanket internet shutdown. It is widely believed that ethnic tensions are being exacerbated by state officials in order to strengthen its foothold, with the usage of otherising narratives through terms such as ‘illegal outsiders’ and ‘narco terrorists’.


The ongoing occurrences in Manipur reflect an attitude of the state toward tribal communities in such situations that is entrenched in narratives of violence, criminalisation, and denial of autonomy. This attitude of paternalism, and corresponding state action, marks a clear refusal of recognition of tribal agency. In the following parts of the essay, I seek to demonstrate how this particular attitude of the state towards tribal communities is reflected in the constitutional imagination of tribal communities and has had significant implications for beneficial legislation such as the Panchayats Extension to Scheduled Areas (PESA) Act, 1996.


I attempt to show the structural issues embedded in the constitutional understanding and scheme of Scheduled Tribes and their rights. I argue that understanding these constitutional underpinnings help in explaining the implementation gap in the PESA, as well as in contextualising the current state violence in Manipur.

To this effect, first, I seek to explore the origins and rationale behind designation of scheduled areas in the Indian constitution. Here, I look at the colonial understandings on scheduled areas that have continued in the Indian Constitution, and point out the effect of exclusions of certain states from the scheduled areas. Second, I attempt to contextualise the specific usage of the term ‘Scheduled Tribes’ in the constitution, and more importantly, why it was used instead of terms such as Adivasis. I do so to point out the otherization and paternalistic rhetoric behind the imagination of tribal rights in the Indian Constitution. The above trends and attitudes, I argue, persist not only in the Constitution, but have implications for legislations founded in its roots, as well as for legitimising state violence.

Scheduled Areas


The origin of Scheduled Areas is rooted in colonial administration. The British Government, starting from the year 1822, enacted regulations to govern certain ‘difficult areas’2 not through conventional regulations, but through the exercise of the discretion of the Governor-General in the Council. It is important to recognise that such areas were termed ‘difficult’ due to armed resistance towards the colonial state’s abrogation of the tribal communities’ rights to forest land. The Government of India Act of 1870 was instrumental here, as it allowed for special legislations for these designated difficult areas, which later came to be known as backward. Consequently, such provisions were reflected both in the Government of India Acts of 1919 and 1935, that left the extension of provisions to said areas to the executive’s discretion. The nature of the laws so enacted, while on occasion protective, marked a first in a trend of paternalistic legislation,3 that fallaciously assumed the interests of the communities it sought to ‘protect’.


Concurrent to the above legislative imagination, the nature of such areas also went through drastic shifts. Particularly, the imprints of the British exploitative project were starkly seen, with colonial infrastructure, population movement, and land alienation. Further, there was widespread recognition of colonial superiority and emulation of colonial practices.4 The precolonial imagination of Scheduled Tribes thus bears a clear marker of an erasure of recognition of autonomy.


This precolonial imagination was distinctly reflected in the Constituent Assembly Debates on the 5th Schedule. Specifically, the calls of Jaipal Singh Munda, arguably the most vocal representative of the Adivasi community in the constituent assembly, ought to be highlighted. When the discussions on the 5th Schedule were tabled, it is to be noted that he was not among those primarily consulted, despite his vocality. He spoke to the schedule being applicable to all members designated as Scheduled Tribes irrespective of being part of the designated Scheduled Areas, which was summarily rejected. The grounds of this rejection, and the subsequent formulation of provisions of the 5th Schedule as they exist in the constitution are interesting, given that they are grounded in the same idea of lack of autonomy. Certain members of the constituent were staunch believers that it was beyond the capability of members of scheduled tribes to undertake administration effectively.

Further, a tension between the Indian development project and a responsibility to tribal populations underpinned Constituent Assembly Debates. This was reconciled with a continuous reinforcement of a need to develop and assimilate ‘these populations’ into the mainstream. A majority of the adjudication that is undertaken on this ‘tension’ ignores the centrality of autonomy and agency to a degree legitimised by constitutional and pre constitutional foundations.


The effects of such exclusions are evident in decisions such as those of State of Kerala v. People's Union for Civil Liberties, Kerala State Unit, where the Supreme Court in part justified its decision on the fact that the Scheduled Tribes in Kerala do not fall under the purview of constitutionally designated scheduled areas.


Hence, the categorisation of Scheduled Areas has served to allow the state a degree of impunity in dominating tribal populations, largely through state claims of sovereign holding of forest land.5 The pre-colonial rationale behind such lay in exploitation of forest resources to the avail of the colonial government. It is clear that post independence, while the discourse to justify such plunder rested in ‘trade offs’ between the Indian development project and ‘protecting and helping’ tribal communities,6 the positions favoured in most cases indicate a continuation of plunder. This is further evidenced in the Constitution and the Constituent Assembly Debates, as demonstrated in this Section.


Scheduled Tribes or Adivasis?


At the outset, it is important to note the divergent origins of the words Schedule Tribes and Adivasis. This will help in contextualising this section. ‘Scheduled Tribes’ is largely seen as a political or administrative category,7 one that was invented by the Constituent Assembly. However, it should be seen as the final evolution of terms such as ‘backward’ and ‘excluded’ that were continually used by previous legislation and even the Constituent Assembly. Hence, it is in this pervading rhetoric of backwardness and incapability that the very Constitutional identity of these communities is couched.


On the other hand, the phrase Adivasi, which was consciously not used in the Indian Constitution, was a term coined in the 1930s through numerous tribal resistance movements, and is translated to Original Inhabitant. The language of this designation is extremely important, as highlighted in the Constituent Assembly by Jaipal Singh Munda, for it was this designation of identity that laid the foundation to the legal claim of ‘prescriptive rights’ that cannot be denied. Consequently, it is in this formulation that a claim for equality, autonomy, and agency could have been founded in the constitution. However, such proposition was rejected by the other members of the Constituent Assembly, positing that such usage of ‘Adivasi’ would lead to an open undefined category and the term is pregnant with mischief. While the latter justification does not deserve reconciliation, the former should be examined.

The contention that the term Adivasi would lead to difficulties in categorisation, to some extent bears weight, given that it is not all inclusive and does not automatically include all communities designated today as Scheduled Tribes, or who identify as tribal populations, and does not necessitate that said communities are the actual original dwellers.8 However, this issue exists even with the use of the word Scheduled Tribes, an administrative creation, whose content is a function of being deemed a Scheduled Tribe under Article 342 of the constitution. Further, strong questions have been posed to the politics of the exercises of inclusion and exclusion under Article 342, and it has been argued that in the name of such policies seeking to include, the state has continued to maintain a paternal relation with tribal populations, by restricting their access to land and imagining tribal communities as incapable of developing themselves.9 Therefore, no valid justification lies as to why the Constitution could not have used the term Adivasi instead of Scheduled Tribe, particularly given the historically political and derogatory connotations attached with the phrase Scheduled Tribes.


Furthermore, it is to be noted that the usage of Scheduled Tribes has had very tangible impacts in forcing a change in tribal identity at certain occasions.10 Some authors have argued that the usage of such designation, and particularly the Constitutional erasure of the term Adivasi, has led to a change in how some tribal communities identify themselves.11 Hence, the emancipatory potential of the designation Adivasis, along with the ability of equal recognition, ought to be duly noted.


Thus, the very political choice of using the term Scheduled Tribes instead of Adivasis in the Constitution is an indicator of the paternalism and the lack of autonomy rooted in the Constitutional imagination of tribal populations. Such an imagination has also caused a change in the self perception of some tribal identities in India. This has had the effect of erasing potential demands for rights and entitlements by tribal communities, replacing it with the continuing Constitutional narrative of assimilation of tribal communities with the state’s vision of ‘development’.


Examining the Implications


The above sections have clearly highlighted how the colonial government, its legislations, the Constituent Assembly, and the Constitution itself has imagined tribal populations. This imagination is one that has been tainted by the lens of backwardness, inherent incapability and deficiency from the very beginning. Concurrently, at numerous occasions, such understandings have been employed to justify exclusion and exploitation, either through forwarding the colonial enterprise or as a necessary sacrifice for India’s development project. There has been a marked lack of recognition of tribal autonomy, and agency in the constitution, which has assumed a paternalistic position instead of allowing for self determination and duly recognising tribal claims as constitutional rights.


I argue that these understandings of tribal communities pervade in certain sections of the PESA and are particularly reflected in its systemic lack of implementation.12 Rather than focusing on particular instances of non implementation, in this essay, I seek to argue that the fact of non implementation, and delays in enactment, in itself is emblematic of pervasive paternal state attitudes. To demonstrate this, I briefly look at the history and reasons for the enactment of the PESA, and compare it with the subsequent state practices.


The PESA was enacted as a result of widespread tribal organisation with the central demand of tribal self rule.13 Particularly, these calls intensified after the 73rd and 74th amendments to the Constitution that created provisions for Panchayats. While the amendments made clear that separate provisions are to be enacted for states with Scheduled Areas, many states with Scheduled Areas established Panchayats in line with their own state legislations, and in contravention of this explicit provision. After the Bhuria Committee Report whose recommendations structured the substantial provisions of the PESA and the striking down of this ‘routine extension’ of the 73rd and 74th amendments to 5th Schedule states, in the background of tribal organisation, the PESA was enacted.


Here, the fact of non-implementation of the PESA, and continuous delays thereof, itself highlights a pervasive paternalistic attitude, given that provisions of PESA explicitly require state legislations (under Section 4(a)), through enactment of operationalising rules, to be aligned with customary laws and practices. However, systemic ignorance of these provisions, especially where rules accompanying state legislations, in line with the requirements of the PESA have not been enacted (or have been enacted partially and with significant delays) in a number of states indicate a clear negation of the history and purpose behind the movement to enact the PESA, which rests in tribal autonomy. Moreover, it points to a conscious choice made by states to de-recognise constitutional and legislative provisions that provide for tribal autonomy, in favour of their own state practices.


Therefore, there lies an inherent conflict and tension between the origins and cultures of implementation embedded in the PESA that does not recognise any form of autonomy and are paternalistic, and the provisions which at face value seek to enhance tribal autonomy through the creation of Gram Sabhas etc. Furthermore, given that the onus of implementation of the PESA rests on institutions that derive power from and share the same understandings as the constitution, continuing colonial structures as well as methods of regulation, the implementation gaps that have been flagged ought to be seen as both an expected, as well as a necessary implication.

Adopting this perspective, we can better understand the ongoing state violence in Manipur as a continuation of the legacy of the above highlighted perspectives. This allows us to recognise such state character not as an anomaly, but the norm, being made explicit at the cost of innocent lives and livelihoods. It is this pervasiveness of imagination, sanctified by the Constitution, and reflected in popular thought and state action, that I argue, has justified adopting violent and extra-legal measures such as shoot at sight orders. It is this regime, based on colonial and postcolonial exploitation and development (read: extractivism), that has legitimised a continuing history of oppression and brutality.


Endnotes


1. Mutum Churamani Meetei v State of Manipur, 2023 SCC OnLine Mani 156.

2. Virginius Xaxa, ‘“Tribal Development in Fifth Schedule Areas: Affirmative Action or Unequal Exchange?”’ in Abhay Flavian Xaxa and GN Devy (eds), Being adivasi: existence, entitlements, exclusion (Vintage, an imprint of Penguin Random House 2021).

3. Prathama Banerjee, ‘Culture/Politics: The Curious Double-Bind of the Indian Adivasi’ in Gyanendra Pandey (ed), Subaltern citizens and their histories: investigations from India and the USA (Routledge 2010).

4. Virginius Xaxa (n 2).

5. Shaunna Rodrigues, ‘Excluded Areas as the Limit of the Political: The Murky Boundaries of Scheduled Areas in India’ (2021) 25 The International Journal of Human Rights 1126 <https://www.tandfonline.com/doi/full/10.1080/13642987.2021.1874359> accessed 12 April 2023.

6. ibid.

7. Jagannath Ambagudia, ‘Scheduled Tribes and the Politics of Inclusion in India: STs and the Politics of Inclusion’ (2011) 5 Asian Social Work and Policy Review 33 <https://onlinelibrary.wiley.com/doi/10.1111/j.1753-1411.2010.00047.x> accessed 13 April 2023.

8. Virginius Xaxa, ‘Tribes as Indigenous People of India’ (1999) 34 Economic and Political Weekly 3589 <http://www.jstor.org/stable/4408738> accessed 13 April 2023.

9. Ambagudia (n 7).

10. Megan Moodie, ‘Chapter 1’, We Were Adivasis: Aspiration in an Indian Scheduled Tribe (University of Chicago Press 2015).

11. Gregory D Alles, ‘Are Adivasis Indigenous?’ in Greg Johnson and Siv Ellen Kraft (eds), Handbook of Indigenous Religion(s) (BRILL 2017) <https://brill.com/view/book/edcoll/9789004346710/B9789004346710_015.xml> accessed 13 April 2023.

12. Yatindra Singh Sisodia, ‘Implementation of PESA and Status of Panchayat Raj Institutions in Fifth Scheduled Areas of Indian States’ in D Rajasekhar (ed), Handbook of Decentralized Governance and Development in India (Routledge 2022).

13. Kamal Nayan Choubey, ‘The State, Tribals and Law: The Politics behind the Enactment of PESA and FRA’ (2016) 46 Social Change 355 <http://journals.sagepub.com/doi/10.1177/0049085716654812> accessed 12 April 2023.

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