ADIVASI RIGHTS and CONSTITUTIONAL CONSERVATIONS

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July 24, 2015

Constitutional conversations on Adivasi rights

• KALPANA KANNABIRAN

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A little used provision in the Constitution may hold the key to protecting the interests of Scheduled Tribes as they fight to hold on to their traditional lands

impoverished:“For Adivasis, equality of opportunity remains largely unfulfilled.” Picture shows Adivasis from Koraput, Odisha, in Visakhapatnam.— Photo: K.R. Deepak

Even 67 years after Independence, the problems of Adivasi communities are about access to basic needs. These include, but are not restricted to, elementary education, community healthcare, sustainable livelihood support, the public distribution system, food security, drinking water and sanitation, debt, and infrastructure. For them, equality of opportunity remains largely unfulfilled. In this context, it is important to stress that the values of tribal culture are transmitted in a manner that protects the right of the bearers of knowledge to determine the terms of the transmission without exploitation or commodification. Nor can the Adivasis’ unhindered access to land and forests, including full access to the commons, especially in scheduled areas, be understated. Tribal communities have, over the decades, witnessed the fragmentation of their habitats and homelands and the disruption of their cultures through predatory tourism. All this has left them shattered and impoverished. Entire communities across States have been dispossessed systematically through state action, and have been reduced from owners of resources and well-knit, largely self-sufficient communities to wage earners in agriculture and urban agglomerates with uncertain futures. Yet, we can scarcely forget that the rights of tribal communities in India are protected by the Constitution and special legislations.

Rights enumerated

While most of these protections are available to groups named in The Constitution (Schedule Tribes) Order 1950, there are some tribal communities that fall within the categories of Scheduled Castes (SC) and Other Backward Classes (OBC) and some that don’t fall into any of these categories. Within the category of Scheduled Tribes (ST), there are over 500 groups listed of whom roughly 70 are part of the sub-classification Particularly Vulnerable Tribal Groups, a small cluster of groups that include the Jarawas of the Andaman Islands, the Chenchus of Andhra Pradesh and Telangana, and the Baigas of Chhattisgarh. These groups face an acute crisis of survival, evident in their rapidly dwindling numbers. Therefore, they are in need of special protection even within the larger ST category, protections in relation to non-tribal communities as well as in relation to other tribal communities. Notwithstanding these complex intersections and overlaps (and exclusions in some instances), tribal communities, especially the STs, are the subject of special constitutional attention.

The right of tribal peoples to development through pathways that affirm their autonomy and dignity, as set out in Article 21 and under Schedules V and VI of the Indian Constitution, is often seen as the core of Adivasi rights. And indeed, they are. The oft-quoted Samata judgment of 1997, rich in its defence of the rights of Adivasi communities to their homelands, posits an inter-reading of Articles 14 (equality), 15 (non-discrimination), 16 (equality of opportunity), 17 (abolition of untouchability), 21 (life and liberty), 23 (right against exploitation) from the Fundamental Rights chapter of the Constitution and Articles 38 (securing a just social order), 39 (guiding principles of policy) and 46 (promotion of educational and economic interests of SCs, STs, and other weaker sections) from the Directive Principles of State Policy.

The constitutional arguments in the High Court of Andhra Pradesh resisting the Polavaram dam centred on whether the state could alter (diminish) the boundaries of a scheduled area without presidential assent. Submergence, in fact, alters boundaries, causes disappearance of villages and village institutions, and renders people from these communities vulnerable through dispossession by displacement — all of which are the subject of special protections for the STs. The largest volume of litigation in scheduled areas has to do with non-tribal occupation of tribal land and the blatant derogation of land transfer regulation laws. Financial inclusion poses the third major problem: despite policy commitments to financial inclusion of vulnerable communities as a measure to lift them out of debt bondage and predatory money lending and usury, moneylenders continue to thrive in tribal areas.

Hidden provision

It is in this overall context that I flag an unused constitutional provision as perhaps holding a key to the justiciable, mandatory protection of the interests of the STs as distinct from other marginalised groups.

Article 19 of the Constitution is commonly understood, through text and case law, as a provision that protects freedom of speech, expression, assembly, association, movement, residence and calling. The first clause of Article 19 reads as follows: 19(1) All citizens shall have the right (a) To freedom of speech and expression; (b) To assemble peaceably and without arms; (c) To form associations or unions; (d) To move freely throughout the territory of India; (e) To reside and settle in any part of the territory of India; and (f) omitted (g) To practise any profession, or to carry on any occupation, trade or business. Clauses 19 (2) to (4) set out the reasonable restrictions to speech, assembly and association in the interests of public morality, decency and integrity and sovereignty of the state — these aspects and their restrictions are what figure most often in animated fashion in debates around Article 19.

Clause 5 of Article 19 reads as follows: 19 (5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe (emphasis added).

In other words, an important part of Article 19 protections have to do specifically with protection of interests of STs (Clause 5) as distinct from other marginalised groups through limitations on right to freedom of movement [sub-cause 1(d)] and right to freedom of residence [sub-clause 1(d)]. This, I would argue, when read with existing protections (for instance as set out in Samata or similar cases) offers a core and express fundamental right protection to Adivasis (as distinct from legal/ statutory protection) from a range of state and non-state intrusions in scheduled areas as well as from the perennial threat of eviction of Adivasis from their homelands.

It is the interests of STs that are paramount in this fundamental right provision, which is presented importantly as a restriction on an enumerated right that is clear and specific — not a restriction of a general nature, namely, the “sovereignty and integrity of India” or “public order,” “decency” or “morality,” as is the case with the other constituent freedoms in Article 19.

Understanding the situation of tribal communities is key to understanding the Constitution, its framework and its possibilities in the fullest sense. Perhaps it is time to reinvigorate our reading of the Constitution in the troubled times we live in. We may find answers to other questions as well around an idea of justice that we grapple with every day.

(Kalpana Kannabiran is Professor and Director, Council for Social Development)

The largest volume of litigation in scheduled areas has to do with

non-tribal occupation of tribal land

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KALPANA KANNABIRAN

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The HinduIllustration: Satwik Gade

PINION » OP-ED

October 15, 2013

Updated: October 15, 2013 10:11 IST

Atrocities that no longer shock

TOPICS

crime

hate crimes

crime, law and justice

judiciary (system of justice)

social issue

dalits

While the Delhi rape incident saw mass protests for justice, crimes against Dalits hardly evoke such outrage, which is why the killers in the Laxmanpur-Bathe massacre have got away

The response by the state to the 2012 Delhi gang rape case was immediate and effective — a commission to review legislative protections and recommend amendments, and a new enactment. The judiciary responded similarly — death penalty for the accused and although there was indignation about the “leniency” towards the juvenile involved in the crime, there was overall a sense of satisfaction that the ends of justice had indeed been met. But all through this saga, a persistent voice from Dalit intellectuals and activists kept asking whyKhairlanji did not provoke this kind of national outrage and why India is unmoved by the most gruesome massacres of Dalits.

The October 9 verdict of the Patna High Court in the Laxmanpur-Bathe massacrebrings this question up yet again: a painful reminder of the continuing legitimacy of the caste system and aggravated assault, making a mockery of the rule of law.

On a plain reading of this judgment, it is not disputed that 58 persons — men, women and children, all Dalits — were killed after being shot by a mob of over a hundred men armed with guns, in a concerted attack on the intervening night of December 1-2, 1997. It is also not disputed that survivors in this village were eyewitnesses who had lost entire families in the massacre, and had narrowly escaped murder themselves. There was a delay by the police in recording the statements; persons identified by the eyewitnesses were not named in the statements in the first instance; there was a delay of three days in reaching the FIRs to the Chief Judicial Magistrate; there was blood in the homes of the victims and survivors; “copious blood” on the banks of the river Sone; and blood smeared on a boat on the riverbank; the murderous mob shouted slogans in praise of Ranvir baba and dispersed on the sound of a whistle; footprints of 100-150 persons on both banks of the river suggested to the investigating officer that the mob had crossed the river towards Sahar but he did not cross the river in his investigation. The investigating officers recorded statements by the survivors that several of the men named as perpetrators were members of the Ranvir Sena who had criminal antecedents.

DELAY

The case was committed to the court of sessions in 1999, but typically as with many atrocity cases, the trial did not begin for 11 years till the High Court issued fresh instructions in November and December 2008. By this time, of 91 witnesses, 38 had turned hostile. Of the 50 accused sent up for trial in 1999, 44 finally faced trial, some having died in the interim. The Sessions Court sentenced 26 persons to death in 2010 after convicting them of murder, criminal conspiracy and atrocity — 13 years after the massacre.

The witnesses cited dispute over wages and standing crop as the reason for the attack — a demand for an increase in wages from one-and-a-half kilos of food grain to three kilos. The perpetrators were not an unknown mob from a strange and distant land. They were landlords in the same and neighbouring villages, who the victims and their families knew well and worked for. They were all from the dominant, landowning castes.

They attacked in the dead of night, flashing torches to search for the victims, and the witness-survivors were hiding from attack — yet they recognised the men and named them. But they had also witnessed unimaginable violence and had lost several members of their families in the attack. Their testimonies through the investigation speak of their hurtling from one house to another discovering more bodies than survivors, and the sound of wailing that rent through the night.

LOOPHOLES

The High Court of Patna speaks of loopholes in the evidence on record: the delay in reaching the FIRs to the Chief Judicial Magistrate; the fact that names were not recorded on the first visit the day after the massacre by witnesses who had lost all their family members in the attack; the impossibility of recognising perpetrators from places of hiding; the impossibility of risking lives to go onto the terrace to identify people from the mob; the impossibility of fixing the identity of individuals in a mob from a distance; inaccuracies in recording the exact location of hiding during the massacre; absence of evidence on any dispute between the dominant landowners and the Dalit wage workers.

Where do these refutations leave us?

Fifty-eight people in a small Dalit hamlet were massacred. There is no denying that. The attackers, says the High Court, were unknown men from Sahar across the river Sone in Bhojpur district, who have not been apprehended. Instead the wrong people who bear no responsibility for the crime have been convicted, says the court. How can we be sure?

This is the trouble with caste atrocity. The fact that perpetrators are in an immediate relation of dominance with victims and survivors and are easily recognised counts for nothing. Can we even begin to understand the courage and determination of poor and traumatised Dalits? The outcome of this case demonstrates yet again how difficult it is to keep a case alive, to keep memories raw and open in the face of an almost certain betrayal by the state, and how tough it is to keep fighting against the conspiracy — between upper caste perpetrators, their collaborators in the establishment and their apologists in a caste-ridden society.

Why not Khairlanji? Why not Karamchedu? Why not Laxmanpur-Bathe? Why does this country not come to a grinding halt in the face of atrocity of the worst kind? Justice can only be said to be done when those that are most vulnerable are able to access it without difficulty. It is our collective failure and a national shame that we allow the space for this travesty again and yet again.

(Kalpana Kannabiran is professor and director, Council for Social Development.)

Keywords: Patna High Court, Laxmanpur Bathe massacre, Ranvir Sena, Bhumihar landlords, crimes against Dalits

Regulating cultures through food policing KALPANA KANNABIRAN

Regulating cultures through food policing KALPANA KANNABIRAN

Organising a food festival can hardly be described as an act promoting hatred between students or communities.

The controversy over the Beef Festival recently organised on the campus of Osmania University in Hyderabad and the threat of professors being investigated by the police for “instigating” the organisers needs to be understood in the context of the larger politics of food and policing of food practices.

Across the country, different communities in different regions have widely varying food habits. It is also well known that food is closely linked to ideas of the sacred and the profane — and must vary along the scale of social diversity. The dense nesting of beliefs related to food extends from what vegetables may be consumed, whether meat may be consumed or not, which kinds of meats are food and which not, which kinds of meat are deemed vegetarian, and whether animal products come within the definition of meat or not.

IDEAS ABOUT EATING

Ideas about food also extend to who can eat together; within a family, who consumes which parts of an animal's body; what is the sequence in which people in a family eat, depending on gender, generation and social status; whether vice chancellors, judges and peons can partake of the same feast at the same time — or in earlier times or even today in more self declaredly caste ridden locales whether the “chuhri” can even dare to ask for fresh cooked food from “chowdhriji” — to recall Omprakash Valmiki's Joothan. And further in the caste context, who must not be sighted by a Brahmin man while he is in the vulnerable state of ingesting food — the shudra, a menstruating woman, pigs, dogs — all to be equally banished from sight.

Because food is surrounded by thick religiosity, there are days and times of the year and cycles in a month or in a reproductive lifetime when certain foods are proscribed and others mandatory. There are also rigid rules around the slaughter of animals and the preparation of meat for consumption — meat consumers do not eat all meats and do not eat the same meat at any place. The acceptance of meat as food is determined by whether the slaughter of the animal has been appropriate. And there are castes who were condemned to eat only carrion, not animals freshly slaughtered for consumption. There are communities in Andhra that share the hunt with the tiger — they believe the tiger leaves enough of its prey for its human kin — with a delicate balance in mutual food security in the deep forests. When religions proscribe the killing of animals, communities of believers who live in hostile and difficult mountainous terrain may drive a herd off a cliff and strip and dry the meat to meet a year's supply of meat. Even with people and communities that eat meat, there are places and times when meat may be eaten — and these vary widely as well. While a religious occasion for some may be marked by the abstinence from meat, for others it is marked by the sacrifice of an animal, its ceremonial preparation and its distribution in a prescribed manner among kin.

ATTITUDE

Ideas of purity, danger, potency, malevolence, uncleanness, tastes (not individual but social) and aesthetics thickly overlay our attitude to food. Faint hearted but brahmanical consumers of meat can swoon or get terribly sick at the sight of a butcher at work, or the sight of “unclean” parts of the animal body — entrails, head, hooves and so on. The same could be the case with lovers of fish when they see a beach overlaid with dry, pungent fish or the baskets of fish vendors on the train on their way to the market. Similarly too, it is not uncommon to find strong negative reactions to snake gourd, bitter gourd, and several other vegetables, not to speak of cooking oils from vegetarians. There are of course caste hierarchies in vegetables and oils too.

Its life giving and life sustaining quality also makes food the medium through which faith is expressed, through sharing on particular auspicious, festive occasions. Whom food is shared with and how is determined by status and social location ranging from “poor feeding” to mutual exchanges of festive food. There is then the renunciation of certain foods as acts of faith (temporarily or permanently) or as an acknowledgement of loss and mourning. It is not uncommon to hear of people giving up their favourite food on the death of a loved one. And of course giving up food is a way of renouncing life itself.

CHANGE IN HABITS

There are also histories of food habits that show that they change over time: the beef eating Vedic brahmin is a well known example.

Among the meats that are consumed in India are chicken, goat, fish and other aquatic creatures, frog, dog, pork, monkey, beef, buffalo, a variety of insects, field rats, deer, a range of birds, some reptiles and many, many more. Across this entire range of food, there are some we might love and relish, and others we might recoil at the mention of. What we relish and what we find unthinkable depends on religion, caste, tribe, and social location, after which individual taste plays a role. The diversity in food habits is part of the plurality of cultures and the right to consume, accept and share food, privately and in festivity, is part of cultural expression.

To the extent that culture is a matter of politics, food becomes the mobilising point for politics. The ubiquitous blessed food that believers partake in at places of worship now gets distributed in street-corners to believers and non-believers alike in every neighbourhood. This is part of an aggressive proclamation of religiosity demanding acceptance as an act of faith from all — often spreading tension that has the police in full force out on the streets for days.

We have sizeable communities in India who eat beef and pork — and these are the two meats on the Indian subcontinent that are used to stoke collective emotions in ways that present polarised stereotypes. Yet we know that the realities of beef and pork consumption defy these stereotypes. There is, however, a distinction between the two: beef is traditionally consumed not just by non-Hindus but by subaltern castes as well, a reality that is denied by the dominant castes.

In this context, if there is a hegemonic cultural formation across or within a religious group that proscribes or stigmatises the consumption of certain kinds of foods, a central part of resistance and of cultural assertion is to share that food publicly. Acquiescing to one proscription will pave the way for another, and the intolerance to diversity in food habits and through food to plural cultures will spiral upwards.

The choice of whether or not to partake of the feast is one an individual makes. In the recent beef festival organised on the campus of Osmania University, there were no reports of any coercion or force-feeding of beef to unwilling people. The people who were there went because they wanted to be there and were people for whom beef was not taboo. The argument on the need to take action against spreading hatred can scarcely be sustained. Even more irrelevant is the suggestion that professors were instigating students — it was a gathering of consenting, free thinking adults.

The organising of a food festival is not a matter for courts to interfere with or order an investigation into. There are more pressing matters related to life and liberty that wait endlessly to get a hearing.

(The author is Professor and Director, Council for Social Development, Hyderabad. Email: kalpana.kannabiran@gmail.com)

Keywords: Beef festival, food policing, Osmania University incident, beef eating

The Hindu News Paper Dated : 02/05/2012 

A moment of triumph for women

KALPANA KANNABIRAN

TOPICS

crimesexual assault & rape
crime, law and justiceinquiry
judiciary (system of justice)
lawscriminal
India

The comprehensive reforms suggested by Justice Verma and his colleagues will protect the right to dignity, autonomy and freedom of victims of sexual assault and rape

Starting with Tarabai Shinde’s spirited defence of the honour of her sister countrywomen in 1882, women’s movements in India have been marked by persistent and protracted struggles. But despite this rich and varied history, we have in recent weeks found ourselves shocked at the decimation of decades of struggle.

A TRANSFORMATION

At a time when despair and anger at the futility of hundreds of thousands of women’s lifetimes spent in imagining a world that is safe drive us yet again to the streets; at a time when our daughters get assaulted in the most brutal ways and our sons learn that unimaginable brutality is the only way of becoming men; at a time when we wonder if all that intellectual and political work of crafting frameworks to understand women’s subjugation and loss of liberty through sexual terrorism has remained imprisoned within the covers of books in “women’s studies” libraries; at a time like this, what does it mean to suddenly find that all is not lost and to discover on a winter afternoon that our words and work have cascaded out of our small radical spaces and transformed constitutional common sense?

The Report of the Committee on Amendments to Criminal Law headed by Justice J.S. Verma is our moment of triumph — the triumph of women’s movements in this country. As with all triumphs, there are always some unrealised possibilities, but these do not detract from the fact of the victory.

Rather than confining itself to criminal law relating to rape and sexual assault, the committee has comprehensively set out the constitutional framework within which sexual assault must be located. Perhaps more importantly, it also draws out the political framework within which non-discrimination based on sex must be based and focuses on due diligence by the state in order to achieve this as part of its constitutional obligation, with the Preamble interpreted as inherently speaking to justice for women in every clause.

If capabilities are crucial in order that people realise their full potential, this will be an unattainable goal for women till such time as the state is held accountable for demonstrating a commitment to this goal. Performance audits of all institutions of governance and law and order are seen as an urgent need in this direction.

The focus of the entire exercise is on protecting the right to dignity, autonomy and freedom of victims of sexual assault and rape — with comprehensive reforms suggested in electoral laws, policing, criminal laws and the Armed Forces (Special Powers) Act, 1958, and the provision of safe spaces for women and children.

Arguing that “cultural prejudices must yield to constitutional principles of equality, empathy and respect” (p.55), the committee, in a reiteration of the Naaz Foundation judgment, brings sexual orientation firmly within the meaning of “sex” in Article 15, and underscores the right to liberty, dignity and fundamental rights of all persons irrespective of sex or sexual orientation — and the right of all persons, not just women, against sexual assault.

Reviewing leading cases and echoing the critique of Indian women’s groups and feminist legal scholars — whether in the case of Mathura or even the use of the shame-honour paradigm that has trapped victim-survivors in rape trials and in khap panchayats, the committee observes: “…women have been looped into a vicious cycle of shame and honour as a consequence of which they have been attended with an inherent disability to report crimes of sexual offences against them.”

In terms of the definition of rape, the committee recommends retaining a redefined offence of “rape” within a larger section on “sexual assault” in order to retain the focus on women’s right to integrity, agency and bodily integrity. Rape is redefined as including all forms of non-consensual penetration of sexual nature (p.111). The offence of sexual assault would include all forms of non-consensual, non-penetrative touching of sexual nature. Tracing the history of the marital rape exception in the common law of coverture in England and Wales in the 1700s, the committee unequivocally recommends the removal of the marital rape exception as vital to the recognition of women’s right to autonomy and physical integrity irrespective of marriage or other intimate relationship. Marriage, by this argument, cannot be a valid defence, it is not relevant to the matter of consent and it cannot be a mitigating factor in sentencing in cases of rape. On the other hand, the committee recommended that the age of consent in consensual sex be kept at 16, and other legislation be suitably amended in this regard.

VOICES FROM CONFLICT ZONES

Rights advocates in Kashmir, the States of the North-East, Chhattisgarh, Gujarat and other areas that have witnessed protracted conflict and communal violence have for decades been demanding that sexual violence by the armed forces, police and paramilitary as well as by collective assault by private actors be brought within the meaning of aggravated sexual assault. This has been taken on board with the committee recommending that such forms of sexual assault deserve to be treated as aggravated sexual assault in law (p. 220). Specifically, the committee recommends an amendment in Section 6 of the AFSPA, 1958, removing the requirement of prior sanction where the person has been accused of sexual assault.

Clearly a sensitive and committed police force is indispensable to the interests of justice. But how should this come about? There have been commissions that have recommended reforms, cases that have been fought and won, but impunity reigns supreme. If all the other recommendations of the Committee are carried through, will the government give even a nominal commitment that the chapter on police reforms will be read, leave alone acted on?

THE DELHI CASE

The recent gang rape and death of a young student in Delhi has raised the discussion on the question of sentencing and punishment yet again. The first set of questions had to do with the nature and quantum of punishment. Treading this issue with care, the committee enhances the minimum sentence from seven years to 10 years, with imprisonment for life as the maximum. On the death penalty, the committee has adopted the abolitionist position, in keeping with international standards of human rights, and rejected castration as an option. The second question had to do with the reduction of age in respect of juveniles. Despite the involvement of a juvenile in this incident, women’s groups and child rights groups were united in their view that the age must not be lowered, that the solution did not lie in locking them up young. Given the low rates of recidivism, the committee does not recommend the lowering of the age, recommending instead, comprehensive institutional reform in children’s institutions.

The report contains comprehensive recommendations on amendments in existing criminal law, which cannot be detailed here except in spirit. The significance of the report lies, not so much in its immediate translation into law or its transformation of governance (although these are the most desirable and urgent), but in its pedagogic potential — as providing a new basis for the teaching and learning of the Constitution and criminal law and the centrality of gender to legal pedagogy.

(Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad. Email:kalpana.kannabiran@gmail.com)

Keywords: Delhi gang rape, Justice Verma committee, crime against women, sexual offences law, Justice Leila Seth, Gopal Subramaniam, India rape incidents

published in THE HINDU dated  January 25, 2013