My Des….

“I am going to my ‘Des’!” tells a simple Bhil with twinkle in his eyes returning from Mumbai after long six months of virtual bondage.

“I am going to Chhattisgarh perhaps Raipur to purchase clothes for my d aughter’s marriage!” confides Phagua ( Fagu Ram Sodhi) of Chanagaon, a small village deep in the forest of Dhamtari district.

The Thirteen ‘Kings’ of ‘Dang’ (meaning ‘forest’) in Western India, now Gujarat, were paid annual tribute by the Raj for their permission to use their forest. The practice continued for the sake of form even after independence, the area being designated as ‘Dang-District’.

“Look, Sentenelese are out there with bows and arrows in their hands, lined up along t he coast at the first sight of our ship!” exclaimed the Captain. “No one has had the privilege so far to set his/her feet on Sentential Island, supposed to be a part of the territorial domain of Andaman and Nicobar Islands.”

And you name a tribe; it is associated with a territory that is sacred to it like Mother- Earth. This Child-Mother relationship persists and subsists through unending generations that is solemn, sacred and unbreakable. The principle of Eminent Domain, on the other hand, binds the people and their territory formally. It is no doubt crucial but cannot be classed as solemn and sacred. We may, therefore, turn the pages of our history back and trace the roots of Eminent Domain in different climes.

A Peep in the History of Mankind

The history of mankind begins with ‘Hunting and Gathering’. It graduates into two well-known stages, namely, (i) Pastoral, and (ii) Shifting Cultivation. Settled cultivation began largely with river valleys that gradually spread to other areas depending on the terrain, climatic conditions, sources of water and ‘skills’ mastered by the people themselves and also some others. The spirit of community’s Eminent Domain is permeated, with some variations no doubt, in all these stages in India until the advent of British Rule. We have had the privilege of the great tradition of ‘Village Republics’. The ‘Ruler’ was like any other ‘functionary’ in the regime, be it a potter, a barber, a smith or such like. He was entitled to one-sixth of the produce for discharging all his responsibilities relatable to the Regime. Assignment of land for any purpose was beyond his discretion. He could, however, assign his traditional share from the produce of a village or more to a temple or any other purpose. Samrat Harsha Vardhan was most liberal in this regard. He gave away to the people whatever had remained unused from his share at the end of four years. In this frame of ‘Uttam Kheti’ the farmer is placed at the top for the simple reason that he sustains and supports the Universe. This realization continues till today. When a farmer sows the seed with grace, he acknowledges the share of one and all in the potential produce including all creatures, saints and even a thief. The situation in Europe was totally different. The Lords commanded the land like ‘Ki ngs ‘. The Serfs tilled the same like ‘Slaves’. This frame collapsed with the rise of middle class and advent of parliamentary democracy in Europe including England. The command over land by the Lords was transferred to the ‘State’ under the dazzle of ‘Principle of Eminent Domain’. The serfs had nothing to lose or gain in this transformation except what may have been showered by the State by way of a good-will gesture and benevolence. This European premise about Eminent Domain that favoured the State was adopted as natural and ordained by colonial regimes. There was no regard whatsoever for traditions of vanquished humanity.

1857 : A Great Divide

The greatest damage in this regard was inflicted on the Indian people after the First War of Independence (1857). The community’s Eminent Domain here was not only sacred but also as natural as ‘the freshness of the air and sparkle of the water’. The new rulers were at their wit’s end about the way that ‘silent war’ was organised without even a whisper about it in the extensive regime. The most invincible and moving force was the community at the village level. The Invaders’ conclusion was that so long as invincible village communities were there, the-British Regime in India would remain shaky and unstable. The laws enacted by the new rulers, therefore, ignored the very existence of ‘community’ with the insidious agenda of its decimation: reducing it to its total non-use. The extensive dejure territorial domain of the community was lost in favour of the British regime in India.

Eminent Domain in Tribal Territories

Having acquired a strong foothold in Delhi and some other important centers, the conquerors turned their attention to the extensive hills, vales and forests: the resource rich abodes of the tribal people. But lo and behold! Here the scenario was totally different. Here, there were not the armies of the rulers they had hitherto faced! Amidst the rugged and unknown terrain, the invaders found themselves facing the people— men, women and children— with whatever arms, mostly traditional, in their hands. History would be fiction to state that the British ever conquered the tribal abodes. They were forced to retreat as never before and create the fiction of ‘excluded/partially excluded areas’ in their annals and reports as a face-saving devise. Eminent Domain of the tribal people is ingrained in the community’s ethos. It is a BIG NO, for any exotic claims of the rulers of any vintage that the privilege of any description has been ever endowed on the community whatsoever.

Tribal Rebellions against Intrusion

Tana Bhagats’ assertion about their natural rights is one of the longest struggles in the tribal history of India. When the new rulers in the territory of Jharkhand, much before the advent of Gandhi, softly made a mention about some ‘revenue’ being paid for the land people cultivate, their assertion was categorical and simple:

God created the Earth;

We are Children of God;

Pray, Where from has

The Government Appeared?

Their position remained unchanged even after independence. The Government of Bihar enacted a law exempting the Tana Bhagats from payment of revenue. This message, however, could not cross the political boundaries of Bihar onto Sundergarh in Orissa. Sunika Munda, an old man of Tana Bhagat vintage refuses to pay the revenue that is now about Rs. 22,000. An appeal to the Governor with a warm embrace has not yielded any result so far. In the mean time the Great Protector of the Regime, TEHSILDAR, has refused to issue the caste certificate to his grand children unless the dues are cleared.

The position taken by the people in Khunti about so-called ‘revenue’ was steeped in people’s benevolence. They agreed to contribute Chanda (meaning revenue) for the guests coming after crossing the seven-seas. ‘Whether the new ‘masters’ deserve this Chanda is an open question that deserves consideration by the Successors here and now.

Autonomy Deeply Ingrained in Tribal Ethos

The intrusions in the tribal territory during the British Regime were fewer and cauti ous. The biggest caution was non-interference in the community affairs that were guided by the customs and traditions of the people themselves. Lest the management of any description trips, no law of the land, central or provincial, applied to these areas in routine. ‘Notwithstanding anything in the laws of the Center or the Province,’ it was left to the discretion of the Governor and Governor alone to extend the same, ‘with such exceptions and modification as he may deem necessary’, to any excluded/partially excluded area, or any part thereof. In this frame the customs and tradition of the concerned community was on par, and thereof remained supreme with no scope for any interference by any authority, whatsoever, except by the Governor in his own discretion.

The Eminent Domain of the tribal people over all resources in their respective habitats in the pre-independence days was, thus, clear and categorical. And the governance in all forms was finally vested in the community to be managed according to their customs and traditions. It may be noted here that this frame was “peoples’ own frame and not a gift of the rulers”. The general perception about this governance was necessarily that of the rulers and the ruled with some palliatives in countless forms for the subject people at their best. The virtual ‘eminent domain’ enjoyed by the tribal people could not be conceded in favour of a subject people in any regime.

The Dawn of Independence and After

The dawn of Independence ushered in a new era with high expectations all around. “We, the People of India” broke the shackles of slavery of the Imperialist Regime with the adoption of our Constitution on the Twenty-sixth of November 1949. We resolved to constitute India into a SOVER1GN , SOCIALIST, SECULAR, REPUBLIC. The ‘Right to Life with Dignity’ is enshrined in its Preamble, yet the issue of ‘Eminent Domain’ was not even alluded to in the Constituent Assembly. The century long slavery with Imperial State at the helm of affairs and the last arbiter had erased even the memory of community’s claim of Eminent Domain amongst the people in general except the tribal people.

This grave omission was sought to be made good by adding a provision concerning ‘Village Panchayats’ under Article 40. This provision was acclaimed as the firm foundation of Gandhiji’s ideal of Gram Swaraj. However, a big question was raised about the compatibility between non- centralised polity of ‘Village Republics’ and the proposed centralised power structure in the Constitution. Dr Rajendra Prasad acknowledged this anomaly. He admitted that the whole Draft will have to be rewritten in the new frame of non-centralised polity. This exercise would have delayed finalisation of the Constitution. It was, therefore, agreed that ‘the Constitution gives us sufficient scope … to slowly bring about social change, a vital and fundamental change without any violent change in the Constitution’. It was further added that ‘constitutions are not only made but they also grow’. A process of evolution and unfolding of the System following the inner logic of the time spirit had to be adequately appreciated. This contradiction in the Constitutional frame was not resolved. The irony is that the Imperialist System in a way refused to relent. The spirit of community got battered as Panchayats degenerated into subordinate formations and cheaper versions of state agencies

New Fervor in Tribal Area

The story of the tribal people, in the so-called ‘phase transformation’ after independence, was t otally different. There were great expectations on all sides. ‘You cannot teach democracy to the tribal people; you have to learn democratic ways from them’ asserted Jaipal Singh in the Constituent Assembly. ‘We may be behind in literacy and in wealth,’ the Frontier Gandhi admitted with humility about his people but asserted that, ‘I can say the people ot North West Frontier Province, if not ahead, are in no way behind you in many things.’ Eminent Domain was naturally an integral part of this ethos.

Lo and behold, a simple slip that remained un-noticed for decades and remains un-appreciated to this day changed the course of history of the tribal people from virtual utopian to crass dystopian. It was agreed that the Excluded/Partially Excluded Areas of 1935 vintage may be reclassified under the two Schedules, which is the Fifth and the Sixth Schedules. Under the new schema of the Constitution, t he Sixth Schedule covers the tribal areas in the North-East while the Fifth covers tribal areas in the rest of the country. These Schedules have been eulogised as ‘Constitution within Constitution’. The Governor in the Fifth Schedule is authorized to ‘make regulations for peace and good government’ for any area of the State that is designated as a Scheduled Area. These Regulations, however, have to be made in consultation with the Tribes Advisory Council with final approval of the President of India.

Thus Governor has been designated as ‘the legislator’ for Scheduled Areas. He is further endowed with a very-very special power under Para 5(1) of the Fifth Schedule, that is:

Notwithstanding anything in this Cons titu tion, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply lo a Scheduled Area or any part thereof in the Stare subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect… It may be noted here that while the Governor can make regulations under Para 5(2) of the Fifth Schedule in consultation with the Tribes Advisory Council subject to final approval by the President, the discretion of the Governor under Para 5(1) to direct non-applicability of any law of the Center or the State in any Scheduled Area is complete. It is a pity that this unique provision has been misinterpreted for 62 long years under the cover of an unstated premise that the Governor must consult the Council of Ministers before issuing any direction under the said notification under Para 5(1) of the Fifth Schedule. The situation has not changed even after the Attorney General of India has recently advised all concerned that the said consultation is not necessary under the law.

Criminalization of the Tribal People

And here we are faced with a situation where the best intentions in the service of the tribal people have led to virtual Hell with no prospect of retrieval at any cost. It may be recalled that no law of the Province or the Center covered the Exclude/Partially Excluded area until the Governor in his discretion extended the same with suitable adaptation where necessary. Such notification was a rare phenomenon. Therefore, the tribal people in these areas were managing all their affairs, except those notified by the Governor, according to their customs and tradition. With the adoption of Indian Constitution on November 26, 1949 all laws of the Center and the State got extended to these areas on the strength of Constitutional mandate thereabout.

No Governor took the trouble of engaging even in the preliminary understanding of the change; no resolu tions were passed by the Center and the States to familiarize the affected people about the implications of this change. Even his Excellency the President of India did not consider adaptation of laws that swarmed the Scheduled Areas under powers vested in the President under Article 372 of the Constitution. It was a day of great celebration for all others who could now understand the nature of new laws in their favour vis-a-vis the innocent simple- tribal. And it was the innocent tribal people, who did not have even an iota of understanding about the mutational legal change all of a sudden. Thus they became violators of law of all descriptions with effect from the same date.

Eminent Domain Discounted in Tribal Terrain

The simple tribal people realized this reality gradually as the pace of so-called development quickened in the country. Industry was ordained as the lead center of the national economy. New ‘Temples’ of National Development- Bhakhara, Bhilai, Bokaro and suchlike – started appearing on the national scene ubiquitously under the aura of ‘Eminent Domain’ of the State. Here was a phase transformation for the tribal areas. The extensive hills and forest with peerless mineral wealth underground inhabited by simple tribals were located far away from the great centers of agricultural civilization. ‘The simple people in simple habitats,’ was a simple honourable construct through the ages. These areas suddenly came to the center of national development scene with extensive resources of all description: strewed around in their regimes. The simple tribal people in the new frame suddenly became unwanted, nay, dispensable artifacts in the Global March of New Civilization.

Promises Galore but Shield Forgotten

Every venture in tribal areas was preceded by great fanfare and countless promises that disappeared after the ‘majlis’ was over. For example, the tribal chiefs waited endlessly for the ‘pashmina’ shawls promised by Jawaharlal Nehru while inaugurating Bailadila Iron Ore Project in Bastar. Countless fortune seekers entered these areas while the tribal people with mostly no records to show receded into their safer terrains . While the State can give the account of how many bricks have been used in a project, there is no dependable record about the number of tribals displaced. While the number of tribals in urban centers in all Scheduled Areas is only about 15 % or so, the non-tribal population in the tribal States in the North-East States is 5% or even less. There are virtually no tribals on the road side, the land being captured by outsiders using not very honourable devises. The rulers are not even aware about the fact that there are provisions for regulating movement, residence and settlement of non-tribals in the Scheduled Areas under Article 19 of the Constitution. The Great Constitutional Shield has remained unknown, unused and unclaimed by all concerned.

Great Ideals and Odious Reality of Disinherited Domain

The biggest irony is that the role model in this great sojourn is not that of fascinating ‘Village Republic’ and ‘Mother Earth’ frames with community at its center and the State standing by with its benign demeanour for providing needed support of any description whatsoever. The State has not emulated the benign community-centered path as promised by the Founding Fathers in the Constituent Assembly. Article 40 itself got designed as an artifact of ‘babus’ of the Raj and not as a honourific instrument of non-centralised polity. The story of this dualism, Great Ideas’ and of Odious Reality, was repeated ubiquitously. Be it Dhebar Commission (1950), Shilu Ao Committee (1968) or Ashok Mehta Committee (1978). The community at the village level, according to all these stalwarts, could be assigned some duties and NOT any authority whatsoever. The principle of Eminent Domain of the community, NOT the State, that prevailed through the ages was not handed ever to the community but usurped by the State. There was virtually no one to speak on behalf of tribal people whose Eminent Domain was honoured till the adoption of the Constitution. They faced the worst of both the worlds there after – Disinherited Domain and Criminalisation of the Community.

Great Expectations, But Negative Score

As the State refused to relent on this vital issue that has extensive ramifications, the simmering unrest took a violent form in many areas largely relatable to land issues A comprehensive frame known as Tribal Sub-Plan (1974) was prepared for meeting this challenge. Elimination of exploitation in all forms, perpetrated especially by the State, was given highest priority. A grand beginning was made in the realm of excise, forest and land that created a new fervour but was not sustained for long. The flooding of the area with unlimited financial resources, throwing aside crucial issues of community’s Eminent Domain became counterproductive as can be seen in the limitless unrest in extensive tribal tract.

The enactment of the Panchayats (Extension to the Scheduled Areas) Act, 19 96 (PESA) was another valiant response of the State to the deteriorating situation that came with high expectations in the tribal areas. The Eminent Domain of the Community has been formally accepted in PESA that comprises part of the Constitution. The crucial provision about the community at the village level is acknowledgement of its own competence and NOT the dole like grace of any other authority what so ever:

4 (d) every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their culture identity, community resources and the customary mode of dispute resolution.

This provision has been hailed as Magna Carta of tribal affairs in India. One of the most important reasons for the renewed unrest in many areas is derogation of even Constitutional provisions that had aroused great expectations amongst the people but nothing much appearing on the ground.

Studied Silence of the Ruling Elite!

Here is the saddest commentary on the way tribal affairs have been treated in India by the ruling elite — First, no Governor has issued a single notification since the adoption of the Constitution under 5(1) of the Fifth Schedule directing that a particular law of the State or the Union shall not apply in the Scheduled Area or any Part thereof.

Second, the Union Government has not issued any direction since adoption of the Constitution to any of the States having Scheduled Area on any issue that may have been brought to its notice in respect of any issue raised by the Governor concerning the ‘administration and good governance’ of the said areas in the State;

Third, our Prime Minister is keen to do something for the ‘Poor Tribal’. The pity is that our PM does not know, nor does he propose to know that there is no ‘poor’ tribal in our country. The tribal that we see stands disinherited in the midst of rich natural resources that are being commandeered by the State under the ignominious aura of ‘Eminent Domain; and

Fourth, our Home Minster is keen to teach the simple tribal and ‘revolutionary groups’ a few lessons through regular police and paramilitary forces. The way the term ‘Green Hunt’ has been internalized by our elite exposes their allegiance to those imperialist forces that are keen on creating limitless space for their wares of all descriptions including land, water , forest and minerals in our country.

Indigenous People: Western Perception

The United State today is a Global Opinion Builder and is influencing Indian polity in countless forms. Theodore Roosevelt, the celebrated US President (1886), asserted that US was ‘generous’ to the (Red) Indians, paying them many times what their land was worth. They broke as many treaties as white men did. The just and honourable nations can operate by breaking treaties whenever they chose. According to him international law and morality don’t apply to indigenous people; any excuse would suffice. As regards land he said—

If the Indians were nomadic, they didn’t own the land;

If they were settled, they didn’t deserve the land; and

If they signed treaties giving them legal ownership, the US had the right to abrogate the treaties wherever circumstances changed.

And if you substitute in the above discourse the terms (i) ‘West’ by ‘Tribal Territory’, (ii) ‘Indian’ by ‘tribal’ and (iii) ‘Theodore Roosevelt’ by any one of the members of the Augustine Oligarchy of the Great Indian Democratic Republic, the real content and intent of takeover of land that has been under the ‘Eminent Domain’ of Tribal Community under the aura of ‘Eminent Domain’ of the State and Capital’s command over resources at any cost-will be crystal clear.

Thus Spake the Disinherited at Last!

The ‘gang’ finally returned without felling a single tree in the face of resistance of villagers in Dhamtari. Reinforcement came the next morning with D.R.F.O. personally wielding the command. The entire village was there. The women were in the first row to face any contingency whatsoever. Silence was broken by a girl who confronted the D.R.F.O.

‘So this forest is yours?’

‘Of course,’ was the simple reply!

‘Do you know the way through this thick forest?’

The DFO remained silent as everyone knew that he had to depend on villagers as helpers in the organised tours and even otherwise. Another girl of the group had collected some leaves from trees around and kept them in the pall oo (fringe) of her sari. She too started the dialogue in the same vein.

‘So this forest is yours?’

The D.F.O. remained silent.

The girl spread her palloo and asked, ‘Can you tell me the names of trees from which these leaves have been plucked?’
Even a blind person can identify the big leaf of teak tree. Here the position was a bit different. He dared not participate in that dialogue. The answer to her question was implicit ‘NO!’ The third girl giggled to the amusement of all and furthered the embarrassing situation for the Forest Lord!

Rasta Jante Nahin,

Patta Pahichante Nahin,

Kahte Hain Jangal Hamara Hai!!

Is Se Bhi Bara Jhuia Kahin Dunia Men Ho Sakata Hai???

(You do not know the paths in the forest; You cannot recognize the leaves either; Yet you have the audacity to tell us that the forest belongs to you; Can you think of a worse liar than you?)

The foresters receded as also the people: a Memorandum of Understanding was signed next Day!

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