At the United Nations,
the government of India consistently denied existence or applicability of the
concept of “indigenous peoples” to India. India had consistently opposed the UN
Declaration on the Rights of Indigenous Peoples by the United Nations though it
voted in favour at the General Assembly on 13 September 2007.
India is signatory to
the ILO Convention No. 107 concerning the Protection and Integration of
Indigenous and Other Tribal and Semi-Tribal Populations in Independent
Countries and it has legal responsibilities for its implementation. Nonetheless
the concept of indigenous peoples has often been questioned in India.
The Supreme Court in its
latest judgement on 5 January 2011 while dismissing the Criminal Appellate
Jurisdiction arising out of Special Leave Petition (Crl) No. 10367 of 2010)
(Kailas & Others .. Appellant (s) -versus- State of Maharashtra)
unequivocally asserted that Scheduled Tribes are indigenous peoples of India
and the apex court further went on to describe the history of oppression from
the days of Mahabharata.
The court dismissed the
petition which sought acquittal of the accused who were convicted for
atrocities against a young woman, Nandabai 25 years of age belonging to the Bhil
tribe which is a Scheduled Tribe (ST) in Maharashtra. She was beaten with fists
and kicks and stripped naked by the accused persons after tearing her blouse
and brassieres and then got paraded in naked condition on the road of a village
while being beaten and abused by the accused.
The four accused were
convicted by the Additional Sessions Judge, Ahmednagar on 05.02.1998 under
Sections 452, 354, 323, 506(2) read with Section 34 Indian Penal Code (IPC) and
sentenced to suffer rigorous imprisonments for six months and to pay a fine of
Rs. 100/-. They were also sentenced to suffer RI for one year and to pay a fine
of Rs. 100/- for the offence punishable under Sections 354/34 IPC. They were
also sentenced under Section 323/34 IPC and sentenced to three months RI and to
pay a fine of Rs. 100/-. The appellants were further convicted under Section 3
of the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act,
1989 and sentenced to suffer RI for one year and to pay a fine of Rs. 100/-.
However, the Aurangabad
Bench of Bombay High Court acquitted the accused of the offence under Section 3
of the SC/ST Act, but the conviction under the provisions of the IPC was
confirmed. However, that part of the order regarding fine was set aside and
each of the appellant was directed to pay a fine of Rs. 5000/- only to the
victim Nandabai.
At the outset the
Supreme Court stated “This appeal furnishes a typical instance of how many of
our people in India have been treating the tribal people (Scheduled Tribes or
Adivasis), who are probably the descendants of the original inhabitants of
India, but now constitute only about 8% of our total population, and as a group
are one of the most marginalized and vulnerable communities in India
characterized by high level of poverty, illiteracy, unemployment, disease, and
landlessness.”
The Supreme Court
expressed surprise “that the conviction of the accused under the Scheduled
Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was set aside
on hyper technical grounds that the Caste Certificate was not produced and
investigation by a Police Officer of the rank of Deputy Superintendent of
Police was not done. These appear to be only technicalities and hardly a ground
for acquittal, but since no appeal has been filed against that part of the High
Court judgment, the apex court did not deal with the issue.
The apex Court while
upholding the judgment of the High court stated that “the sentence was too
light considering the gravity of the offence.”
The Court went to state that
“The parade of a tribal woman on the village road in broad day light is
shameful, shocking and outrageous. The dishonor of the victim Nandabai called
for harsher punishment, and we are surprised that the State Government did not
file any appeal for enhancement of the punishment awarded by the Additional
Sessions Judge”.
The appellants/accused
alleged that the people belonging to the Bhil community live in torn clothes as
they do not have proper clothes to wear. The Court stated that “This itself
shows the mentality of the accused who regard tribal people as inferior or
sub-humans. This is totally unacceptable in modern India”.
The apex Court thereon
went to discuss the history and plight of the Bhils in particular and
indigenous peoples of India in general.
“17. The Bhils are
probably the descendants of some of the original inhabitants of India living in
various parts of the country particularly southern Rajasthan, Maharashtra,
Madhya Pradesh etc. They are mostly tribal people and have managed to preserve
many of their tribal customs despite many oppressions and atrocities from other
communities.
18. It is stated in the
Article ‘World Directory of Minorities and Indigenous Peoples – India:
Advasis’, that in Maharashtra Bhils were mercilessly persecuted in the 17th
century. If a criminal was caught and found to be a Bhil, he or she was often
killed on the spot. Historical accounts tell us of entire Bhil communities
being killed and wiped out. Hence, Bhils retreated to the strongholds of the
hills and forests.
19. Thus Bhils are
probably the descendants of some of the original inhabitants of India known as
the ‘aborigines’ or Scheduled Tribes (Adivasis), who presently comprise of only
about 8% of the population of India. The rest 92 % of the population of India
consists of descendants of immigrants. Thus India is broadly a country of
immigrants like North America. We may consider this in some detail.
India is broadly a
country of immigrants
20. While North America
(USA and Canada) is a country of new immigrants, who came mainly from Europe
over the last four or five centuries, India is a country of old immigrants in
which people have been coming in over the last ten thousand years or so.
Probably about 92% people living in India today are descendants of immigrants,
who came mainly from the North-West, and to a lesser extent from the
North-East. Since this is a point of great importance for the understanding of
our country, it is necessary to go into it in some detail.
21. People migrate from
uncomfortable areas to comfortable areas. This is natural because everyone
wants to live in comfort. Before the coming of modern industry there were
agricultural societies everywhere, and India was a paradise for these because
agriculture requires level land, fertile soil, plenty of water for irrigation
etc. which was in abundance in India. Why should anybody living in India
migrate to, say, Afghanistan which has a harsh terrain, rocky and mountainous
and covered with snow for several months in a year when one cannot grow any
crop? Hence, almost all immigrations and invasions came from outside into India
(except those Indians who were sent out during British rule as indentured
labour, and the recent migration of a few million Indians to the developed
countries for job opportunities). There is perhaps not a single instance of an
invasion from India to outside India.
22. India was a
veritable paradise for pastoral and agricultural societies because it has level
& fertile land, hundreds of rivers, forests etc. and is rich in natural
resources. Hence for thousands of years people kept pouring into India because
they found a comfortable life here in a country which was gifted by nature.
23. As the great Urdu
poet Firaq Gorakhpuri wrote:
“Sar Zamin-e—hind par
aqwaam-e-alam ke firaq
Kafile guzarte gae
Hindustan banta gaya”
Which means –
“In the land of Hind,
the Caravans of the peoples of
The world kept coming in
and India kept getting formed”.
24. Who were the
original inhabitants of India? At one time it was believed that the Dravidians
were the original inhabitants. However, this view has been considerably
modified subsequently, and now the generally accepted belief is that the
original inhabitants of India were the pre- Dravidian aborigines i.e. the
ancestors of the present tribals or advasis (Scheduled Tribes). In this
connection it is stated in The Cambridge History of India (Vol-I), Ancient
India as follows:
“It must be remembered,
however, that, when the term ‘Dravidian’ is thus used ethnographically, it is
nothing more than a convenient label. It must not be assumed that the speakers
of the Dravidian languages are aborigines. In Southern India, as in the North,
the same general distinction exists between the more primitive tribes of the
hills and jungles and the civilized inhabitants of the fertile tracts; and some
ethnologists hold that the difference is racial and not merely the result of
culture.
Mr. Thurston, for
instance, says:
“It is the Pre-Dravidian
aborigines, and not the later and more cultured Dravidians, who must be
regarded as the primitive existing race…… These Pre-Dravidians …… are
differentiated from the Dravidian classes by their short stature and broad
(platyrhine) noses. There is strong ground for the belief that the
Pre-Dravidians are ethnically related to the Veddas of Ceylon, the Talas of the
Celebes, the Batin of Sumatra, and possibly the Australians.
(The Madras Presidency,
pp. 124-5.)”
It would seem probable,
then, that the original speakers of the Dravidian languages were outsiders, and
that the ethnographical Dravidians are a mixed race. In the more habitable
regions the two elements have fused, while representatives of the aborigines
are still in the fastnesses (in hills and forests) to which they retired before
the encroachments of the newcomers. If this view be correct, we must suppose
that these aborigines have, in the course of long ages, lost their ancient
languages and adopted those of their conquerors. The process of linguistic
transformation, which may still be observed in other parts of India, would seem
to have been carried out more completely in the South than elsewhere.
The theory that the
Dravidian element is the most ancient which we can discover in the population
of Northern India, must also be modified by what we now know of the Munda
languages, the Indian representatives of the Austric family of speech, and the
mixed languages in which their influence has been traced (p.43). Here,
according to the evidence now available, it would seem that the Austric element
is the oldest, and that it has been overlaid in different regions by successive
waves of Dravidian and Indo-European on the one hand, and by Tibeto-Chinese on
the other. Most ethnologists hold that there is no difference in physical type
between the present speakers of Munda and Dravidian languages. This statement
has been called in question; but, if it is true, it shows that racial
conditions have become so complicated that it is no longer possible to analyse
their constituents. Language alone has preserved a record which would otherwise
have been lost.
At the same time, there
can be little doubt that Dravidian languages were actually flourishing in the
western regions of Northern India at the period when languages of the Indo-
European type were introduced by the Aryan invasions from the north-west.
Dravidian characteristics have been traced alike in Vedic and Classical
Sanskrit, in the Prakrits, or early popular dialects, and in the modern
vernaculars derived from them. The linguistic strata would thus appear to be
arranged in the order- Austric, Dravidian, Indo-European.
There is good ground,
then, for supposing that, before the coming of the Indo-Aryans speakers the
Dravidian languages predominated both in Northern and in Southern India; but,
as we have seen, older elements are discoverable in the populations of both
regions, and therefore the assumption that the Dravidians are aboriginal is no
longer tenable. Is there any evidence to show whence they came into India?
No theory of their
origin can be maintained which does not account for the existence of Brahui,
the large island of Dravidian speech in the mountainous regions of distant
Baluchistan which lie near the western routes into India. Is Brahui a surviving
trace of the immigration of Dravidian – speaking peoples into India from the
west? Or does it mark the limits of an overflow from India into Baluchistan?
Both theories have been held; but as all the great movements of peoples have
been into India and not out of India, and as a remote mountainous district may
be expected to retain the survivals of ancient races while it is not likely to
have been colonized, the former view would a priori seem to be by far the more
probable.” (See ‘Brahui’ on Google).
25. In Google ‘The
original inhabitants of India’, it is mentioned :
“A number of earlier
anthropologists held the view that the Dravidian peoples together were a
distinct race. However, comprehensive genetic studies have proven that this is
not the case. The original inhabitants of India may be identified with the
speakers of the Munda languages, which are unrelated to either Indo-Aryan or
Dravidian languages.”
26. Thus the generally
accepted view now is that the original inhabitants of India were not the
Dravidians but the pre-Dravidians Munda aborigines whose descendants presently
live in parts of Chotanagpur (Jharkhand), Chattisgarh, Orissa, West Bengal,
etc., the Todas of the Nilgiris in Tamil Nadu, the tribals in the Andaman
Islands, the Adivasis in various parts of India (especially in the forests and
hills) e.g. Gonds, Santhals, Bhils, etc.
27. It is not necessary
for us to go into further details into this issue, but the facts mentioned
above certainly lends support to the view that about 92% people living in India
are descendants of immigrants (though more research is required).
28. It is for this
reason that there is such tremendous diversity in India. This diversity is a
significant feature of our country, and the only way to explain it is to accept
that India is largely a country of immigrants.
29. There are a large
number of religions, castes, languages, ethnic groups, cultures etc. in our
country, which is due to the fact that India is a country of immigrants.
Somebody is tall, somebody is short, some are dark, some are fair complexioned,
with all kinds of shades in between, someone has Caucasian features, someone
has Mongoloid features, someone has Negroid features, etc. There are
differences in dress, food habits and various other matters.
30. We may compare India
with China which is larger both in population and in land area than India.
China has a population of about 1.3 billion whereas our population is roughly
1.1 billion. Also, China has more than twice our land area. However, all
Chinese have Mongoloid features; they have a common written script (Mandarin
Chinese) and 95% of them belong to one ethnic group, called the Han Chinese.
Hence there is a broad (though not absolute) homogeneity in China.
31. On the other hand,
as stated above, India has tremendous diversity and this is due to the large
scale migrations and invasions into India over thousands of years. The various
immigrants/invaders who came into India brought with them their different
cultures, languages, religions, etc. which accounts for the tremendous
diversity in India.
32. Since India is a
country of great diversity, it is absolutely essential if we wish to keep our
country united to have tolerance and equal respect for all communities and
sects. It was due to the wisdom of our founding fathers that we have a
Constitution which is secular in character, and which caters to the tremendous
diversity in our country.
33. Thus it is the
Constitution of India which is keeping us together despite all our tremendous
diversity, because the Constitution gives equal respect to all communities,
sects, lingual and ethnic groups, etc. in the country. The Constitution
guarantees to all citizens freedom of speech (Article 19), freedom of religion
(Article 25), equality (Articles 14 to 17), liberty (Article 21), etc.
34. However, giving
formal equality to all groups or communities in India would not result in
genuine equality. The
historically disadvantaged groups must be given special protection and help so
that they can be uplifted from their poverty and low social status. It is for
this reason that special provisions have been made in our Constitution in
Articles 15(4), 15(5), 16(4), 16(4A), 46, etc. for the upliftment of these
groups. Among these disadvantaged groups, the most disadvantaged and marginalized
in India are the Adivasis (STs), who, as already mentioned, are the descendants
of the original inhabitants of India, and are the most marginalized and living
in terrible poverty with high rates of illiteracy, disease, early mortality
etc.
Their plight has been
described by this Court in Samatha vs. State of Andhra Pradesh and Ors. AIR
1997 SC 3297 (vide paragraphs 12 to 15). Hence, it is the duty of all people
who love our country to see that no harm is done to the Scheduled Tribes and
that they are given all help to bring them up in their economic and social
status, since they have been victimized for thousands of years by terrible
oppression and atrocities. The mentality of our countrymen towards these
tribals must change, and they must be given the respect they deserve as the
original inhabitants of India.
35. The bravery of the
Bhils was accepted by that great Indian warrior Rana Pratap, who held a high
opinion of Bhils as part of his army.
36. The injustice done
to the tribal people of India is a shameful chapter in our country’s history.
The tribals were called ‘rakshas’ (demons), ‘asuras’, and what not. They were
slaughtered in large numbers, and the survivors and their descendants were
degraded, humiliated, and all kinds of atrocities inflicted on them for
centuries. They were deprived of their lands, and pushed into forests and hills
where they eke out a miserable existence of poverty, illiteracy, disease, etc.
And now efforts are being made by some people to deprive them even of their forest
and hill land where they are living, and the forest produce on which they
survive.
37. The well known
example of the injustice to the tribals is the story of Eklavya in the Adiparva
of the Mahabharat. Eklavya wanted to learn archery, but Dronacharya refused to
teach him, regarding him as low born. Eklavya then built a statue of
Dronacharya and practiced archery before the statue. He would have perhaps
become a better archer than Arjun, but since Arjun was Dronacharya’s favourite
pupil Dronacharya told Eklavya to cut off his right thumb and give it to him as
‘guru dakshina’ (gift to the teacher given traditionally by the student after
his study is complete). In his simplicity Eklavya did what he was told.
38. This was a shameful
act on the part of Dronacharya. He had not even taught Eklavya, so what right
had he to demand ‘guru dakshina’, and that too of the right thumb of Eklavya so
that the latter may not become a better archer than his favourite pupil Arjun?
39. Despite this
horrible oppression on them, the tribals of India have generally (though not
invariably) retained a higher level of ethics than the non-tribals in our
country. They normally do not cheat, tell lies, and do other misdeeds which
many non-tribals do. They are generally superior in character to the
non-tribals. It is time now to undo the historical injustice to them.
40. Instances like the
one with which we are concerned in this case deserve total condemnation and
harsh punishment.”
Issue-02
October to
December 2010
http://www.achrweb.org/ihrrq/issue2/indigenous.html
