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NEED FOR A SEPARATE TRIBAL ACT INSTEAD OF TRYING TO BRING THE TRIBALS AMONG THE ‘HINDU’ FOLD

INTRODUCTION

The term ‘tribes’ as we understand it today is a definition that has changed many times over the years. When we say that the category of tribes is a colonial construction what we mean to say is that these groups see and identify themselves as being different and were seen as different by others, rather than that they lacked a unique identity of their own.[1] What colonizers meant while using the term tribes is to describe people who were heterogeneous in physical, linguistic, and ecological conditions. Although we may treat the term as a colonial construction, we need to understand that the meaning underlying the category was not and there were similarities between the term tribe and the ideas of the Indian Civilization that came to be called tribes during the colonial period.

HISTORICAL CONTEXT

The term since the sixteenth century has referred to groups living under primitive and barbarous conditions. Western racial concepts simply advanced the aspect of wickedness associated with tribes in the Hindu religious texts.  The difference between tribes and the rest of the population was mainly in terms of ethnicity than in terms of caste, which has changed and is now the main point of contention when we have debates about the succession rights of the tribal people. The nature of administration in earlier times was different for both and the laws meant for the general population did not apply to the tribals and special laws were framed for their governance. The colonizers used terms like non-regulation tracts, scheduled areas, or excluded and partially excluded areas to describe the nature of their administration[2]. But these terms were never intended to exclude the tribes when they were differentiated as hill tribes and forest tribes referring to their geographical isolation and primitive living conditions. The problem arose when the aspect of religion was adopted to differentiate a tribe from a caste. If a group was shown to be Hindu in its beliefs and religious practices, it was identified as caste. Even though castes and tribes suffer similar problems there has been a tendency to place them under the common term ‘Dalit’ which is wrong since it betrays the scheduled caste from their class consciousness. By using this term, we impose an alien consciousness on them which they have now seemed to internalize. The caste orientation was strengthened after independence and constitutional provisions also see tribes as caste entities rather than as distinct societies.

THEORIES OF ELWIN AND GHURYE

Elwin proposed a policy for tribals that was no different from the general population. On the other hand, Ghurye advocated the policy of assimilation and argues that the tribes were Hindus, rather than ‘backward Hindus’. He believed that they should be assimilated into the larger society to lift them out of poverty. On the scale of tribe, class, and caste, this put tribals at the bottom, but for Ghurye it implied a transition of tribals from tradition to modernity. Discarding the earlier approaches of isolation and assimilation the new policy regarding Indian tribes proposed was integration. John Glinn describes integration as an ideal state in which all parts of a culture gear smoothly into each other and describes how tendencies to smooth gearing come about.[3]

The Constitution, however, confers fundamental rights to all citizens. Tribes are the best example of how diverse Indian society has always been. Special measures are required to ensure their identities are protected. These include provisions for their statutory recognition (Article 342)[4], for proportional representation in the parliament (Art 332)[5], restrictions for ordinary citizens to settle in tribal areas Article 19(5))[6] and Articles 14(4)[7], 16(4)[8] and Article 29[9],dealing with the protection of dialect and reservation in jobs. The whole idea of such impunity is to protect the tribal customary laws governing matters related to marriage, inheritance, succession etc. Nonetheless, the fact of Hinduization of tribes has always been a matter of discourse. On one hand, it is considered a process of integration of tribes into the mainstream of society. On the other hand, the effects of Hinduization of tribes affects their culture and is seen as an intrusion into their homes reducing them to low-caste Hindus. The question that now needs to be answered is if Hinduization and Sanskritization, which take place in tribal groups, prepare the path for their integration into the Hindu society. This becomes extremely important to address if Hindu Succession Act is applicable in the matter of inheritance among the members of Scheduled Tribes if they are ‘sufficiently Hinduized’.

SANSKRITIZATION AND HINDUIZATION

Sanskritization is a process whereby the communities placed lower on the caste hierarchy emulate the way of life of the dominant caste of the religion and through this way, they can move up the caste hierarchy.[10] This process however is inappropriate for the tribals since it assumes that they are a part of Hindu society and a part of the caste society. Now if we look at Hinduization we realize that it also entails an assumption of caste status, thereby giving tribes a low-caste status and further marginalising them.[11] The reason why the Rashtriya Swayamsevak Sangh, hereinafter referred to as “Sangh” denies Adivasis the status of the original dwellers is because it contradicts its assertion that the Aryans, who introduced Vedic civilisation to the nation, are the land’s original residents. Moreover, the Sangh has given themselves the responsibility of Hinduizing tribals as necessary for national integration as well as for their electoral gains. The IDRF-funded operations of Sewa Bharti for example are only nominally development organizations but in reality, are Adivasi reconversion institutions.

 To answer the previous question of the applicability of the Hindu Succession Act among the tribals, a reference to the apex court in the case of Labishwar Manjhi vs Pran Manjhi and Ors[12] is of great importance. On July 19, 2000, the court held that when the evidence disclosed that parties belonging to the Santhal tribe were practising Hindu customs and not that of the Santhals, then the provision of the Hindu Succession Act would apply concerning the inheritance of property. The observation in the judgment violates the cultural rights of the tribal people. The position of the courts certainly will have the effect of separating the Hinduized tribals from the rest of the family or society. The exclusion from the tribal fabric of society will eventually lead to social unrest among the tribals. Section 2(2) of the Hindu Succession Act[13] indeed excludes its operation to the STs, but it does not mean that to acquire the benefit under Hindu Law, one must convert to or follow Hinduism. In Chunku Manjhi and Ors. v. Bhabani Majhan and Ors[14] it was observed that tribals can be governed in matters of inheritance and succession if they become sufficiently Hinduized.[15] Hence the case laws above paint the picture that the Sangh for their selfish reasons is reconverting the tribal people and depriving them of their class consciousness, and further separating sufficiently Hindu tribals from the rest, which ultimately is leading to alienation and further marginalisation.

NEED FOR A SEPARATE TRIBAL ACT

The theories being propounded by the courts, separating the Hinduized or sufficiently Hinduized from the rest of the notified STs for the extension of the provisions of the Hindu laws, will certainly stand as a block to the cultural cohesion among the tribals [16]. The tribal societies are broadly homogenous, while the Hindu caste groups are heterogenous culturally. The Hinduization of tribes is also a source of communal tensions and violence.  RSS-affiliated groups working in Jharkhand and Chhattisgarh have managed to create a rift between the Christian tribals and Hindu tribals. The smaller business communities are usually mobilized by the RSS under the umbrella term ‘Vananchal’, which then exploits tribal groups to counter Christian Adivasis.

CONCLUSION

As previously stated, the definition of tribes has changed several times over the years and the colonizers saw them differently as the Indian Civilization saw it or continues to see it even today. Tribals were always separate barbarous groups for whom the nature of administration was different from the rest of the population but by using the term ‘Dalit’ they were separated from their class consciousness. Even though the Constitution has certain measures for the tribal population of India, their succession rights are under contention which further causes the problem of Hinduisation. The Rashtriya Swayamsevak Sangh views this as an opportunity to get electoral gains but this practice has severely violated the cultural rights of the tribals. Moreover, this practice has caused a rift between the Christian tribals as well as the Hindu tribals giving rise to communal tensions. Hence, it is important to include the Tribes while striking a balance between taking protective measures for them without encroaching on their territory and conducting campaigns of forced conversion for electoral gains. There is an urgent need for a Separate Tribal Act to deal with such issues because bringing them under the Hindu Succession Act takes away their rights as well as the freedoms they were given in earlier times.

Author(s) Name: Saamragyi Gupta (OP Jindal Global University, Sonipat)

Reference(s):

[1] Virginius Xaxa, State, Society, and Tribes: Issues in Post-Colonial India (Pearson Education India 2008)

[2] Ibid

[3] Abhiruchi Singh, ‘Hinduisation of Schedule Tribes vis-a-vis Codified Hindu Law’ (2021) (4)(4) IJHM 2572

[4] Constitution of India 1950, art 342

[5] Constitution of India 1950, art 332

[6] Constitution of India 1950, art 19(5)

[7] Constitution of India 1950, art 14(4)

[8] Constitution of India 1950, art 16(4)

[9] Constitution of India 1950, art 29

[10] Xaxa (n1)

[11] Abhijit Guha, ‘Scrutinising the Hindu Method of Tribal Absorption’ (2018) (53) (17) EPW 105

[12] Labishwar Manjhi v Pran Manjhi and Ors (2000) 8 SCC 587

[13] Hindu Succession Act 1956, s 2(2)

[14] Chunku Manjhi and Ors v Bhabani Majhan and Ors AIR 1946 Pat 218

[15]  Xaxa (n1)

[16] Dr. Shalini Saboo, ‘Succession rights of tribal women: Time for gender equality’ (Bar and Bench, 9 April 2023) <Succession rights of tribal women: Time for gender equality (barandbench.com)> accessed 11 July 2023