Indian Constitution and Adivasis
According to the Article 25 of the Indian Constitution Adivasi is outside of the bounds of Hindu religion. The religion of Adivasi is separate like that of Muslim, Christian and he is leading his life according only to those traditions for generations. Adivasi's method of living life is entirely different from that of Hindus and his identification also is separate from the Hindus. Naturally the religion of Adivasi is beginning of their separate identification. Hindus culture is "killer of nature" in the name of progress whereas the Adivasi is worshiper of the nature. Naturally religion of Adivasi belongs to this land and they have got their own "Gana" Panchayats i.e. the republican council which performs administration of law.
After Independence "Hindu personal law" was made, based on the social background and traditions of Hindus. But there were more traditions and more fertile backgrounds for making personal law for the Adivasis, available, and though Adivasi traditions with its different method of life, different religion, different language, different methods of jurisprudence were already available, neither a separate personal law of Adivasi was made, nor the traditions of Adivasi sanctified. As a result they were kept away from the law of independent India.
The system of the Adivasi "Kulas", i.e. Totems, are not based on caste and are outside the purview of the Chaturvarna is in existence even today. In this Nature Worshiper society there is no concept of God, there is no Idol worship, there are no temples. Therefore, Hindu leaders always know that Adivasis do not fit in any of our religious principles, and will be required to give separate identification to them. But it is clear, that they have no intention to allow such separate identification to Adivasis.
During 1935, Central Provinces Legislature admitted a bill to apply Mitakshara law from Benaras school. On this bill the High Court of Central Provinces having compared "Hindu Law", with the law of Adivasis based on old customs and traditions from hoary past, made it clear that Adivasis are separate from the Hindus. Therefore, the Administration of Central Provinces declared an Ordinance that Adivasis are not Hindus and Indian Succession Act" is not applicable to them, as will be clear from quote below:
"A notification of Central Provinces Govt. has declared that the Gonds are not subject to the Indian Succession Act, and the High Court has ruled that for Legal purposes Gonds are not Hindu." [p.643, "Tribal Law and Justice", W. C. Archer).
The Central Provinces administration further ordered that Adivasi did not come under the purview of Indian Succession Act but also they do not come under the Civil law. Accordingly Adivasi coming near to Hindu society is forgetting his own customs and traditions. Therefore, the new generation finds it difficult to define the limits of their customs. The Adivasi who is living his own life according to ancient tradition resides in far away places and does not bother to knock the doors of law of courts. We Adivasis are separate from Hindus and to prove this we have got our separate customs and traditions. To prove it to the court of law is our responsibility. It is observed:
"The High Court has rightly ruled that Gond are not Hindu and not governed by Hindu Law they are also not governed by the Indian Succession Act. In any case, therefore, of adoption, dispute in succession claim to property, guardianship, divorce or marriage, Gond custom has to prove. [p.643 ff., "Tribal Law & Justice", W. G. Archer]
Even the Hindu Code Bill, though passed in divided pieces, is not applicable to the Adivasis. Therefore, the Adivasi women are deprived from the legal protection of provisions of bigamous marriage etc. They also do not get the benefits of Succession Act and Sons and the Wives do not get right of succession in the property of father.
Adivasis are allowed to make their own laws according to the powers given to them in the scheduled areas as per 5th and 6th Schedules of the Indian Constitution.
Though they got these powers, the Gana-Panchayat can not make laws which is go against the basic principles of the Indian Constitution. As a result the Autonomous Councils are divided in making laws to give separate identity to the Adivasis and thus autonomous areas also have become the developmental model for Hinduisation of the Adivasis.
After Africa, India is a country of largest Adivasi population. In spite of this, there is no separate laws for them. In Australia and Africa, in their respective countries and the rulers have declared their Adivasis as "Indigenous" as per United Nations Organization's definition and gave them powers of self determination. The situation is apposite in India. In Indian Constitution Adivasis are not defined; they are called Scheduled Tribes. Scheduled Tribes is a term of Hindus. Scheduled tribes does not mean Indigenous. Indian attitude is negative in this respect.
In Australia the same tribal council formulates Laws, applies them and awards punishment for their violation. The same is the condition concerning most of the primitive societies in the world. ["Social & Cultural Anthropology", Dr.R.N.Sharma]
The Hindu term Scheduled Tribes denies the existence of Adivasis, whereas the term Indigenous gives them separate identity on international level. Why the Adivasis are denied the status of Indigenous on international level is because Adivasis are not Hindus. The dispute of Hindu and Hindu law is internal problem and not an inter-national one. But because Adivasi is out of Hindu law he can directly contact on international level. This is the fear haunting Hindutavadis, and is the main reason of their denying the status of "Indigenous People" to the Adivasi.
Hindu law and Adivasi women.
Pastoral Tribes of Aryans arrived in India and imposed their own patriarchal culture over the indigenous people and system of uncultured society with slavery and Chaturvarna was created. When Aryan tribes came they did not bring their women they married the Adivasi women from this country. Therefore, patriarchal customs gradually prevailed the Adivasi society, and the caste system itself became a hurdle against liberation of women in this country.
Status of women and men is equal among the Adivasi. In the "Gotul" the Adivasi young men and women have got full liberty to select their life partner and both of them earn their leaving to lead life of unity after marriage. Every women has got some rights like men and divorce and re-marriage. The divorce women can get easily re-marriage. There is no divorce system neither there is any bad customs like sati within the Adivasi. The laws based on customs and traditions of Adivasi are based on more equality and give the protection to the Adivasi.
The Hindu law are supporting patriarchal social system. To imposed Hindu law over Adivasi means imposing of patriarchal law over the Adivasi women. Hindu law has kept away women and avoided codification of Adivasi law leading to the anomalous condition.
According to the section 494 of Indian Penal Code bigamy is a punishable crime. The customs and tradition of Adivasis give sanction to bigamy. Therefore, Adivasi men can not be tried in the court of law.
Manu has enjoining that women have no social rights and has to lead her life under somebody's slavery. As per Hindu religious texts, father will protect her in the childhood, the husband during youth, and son in the old age. Women have no independent existence, says Manu (9.31)
Social reformers Mahadeo Govind Ranade and Gopalkrishna Gokhale define the word "Raksha" in Manu's verse as meaning "protection" and said that woman is protectable but not a slave whereas the Bal Gangadhar Tilak defines the word "Raksha" as "to be controlled" and declared that unless the woman is kept under control by father, husband or son, she becomes promiscuous and adulteress.
According to Adivasi culture the women are honoured by giving them equal status. This we find in practice even today in the Adivasi Padas i.e. colony. However, lately because of the influence of the Hindu traditions the Adivasi women are being denied the status of equality. Same examples are quoted:
India is celebrating the golden jubilee of its Independence. After 50 years of independence nobody is thinking of separate laws for Adivasis. This is the tragedy. The Adivasi is the most neglected element living his existence without law and justice. Because he is not a Hindu he has no protection of Hindu law. and because traditions are not accepted as law the situation has arisen that when an Adivasi needs protection as per Hindu law, a finger is pointed to traditions and when he deserves justice according the customs and traditions of Adivasis the finger is pointed to Hindu law. Thereby an Adivasi is being denied justice either way. During the changing times certain customs of Adivasis have become void and are proving to be against their interests. Adivasi traditions which were good have now becomes bad customs and are outdated. It is necessary to remove them otherwise they will be converted into Adivasi law and harm their interests.
There is a system of selling women in some areas in Mondapatti tribes in Gangam district of Orisa. It is not an Adivasi tradition to mortgage or sell women, but this is happening to avoid starvation, only because of their poverty. The Mondapatti women are being sold at Rs.60/- to 400/-, whereas in Bishnoi tribes of Rajasthan, system of child marriage prevails even today. A tribesman mortgages his wife in difficult times and brings her back when he repays the loan. All these traditions are definitely not part of the original Adivasi culture, and are the result of their exploitation.
In some tribes of Adivasi there is a system of marriage of widows with the brother of deceased husband, the choice of brother depends on her. If any widow wants to get married with an unmarried brother of dead husband that brother must first marry some one else, then only she can marry him.
In the western region of Madhya Pradesh eldest daughter is made a prostitute in the Bachara tribe with the intention of supporting the family. Even some educated girls are following this custom. Every fifth girl among them is such a "Khelwadi". During this tribe these Khelwadi girls have got respect, and are prohibited to marry within their own tribe.
In the valley, within the Kinoras Adivasis, there is joint family system where woman by name Yenkit has got two husbands named Giyalbo and Joriram who are brothers. They have three children. In this matriarchal family, the younger brother Joriram if marries another girl his wife Yenkit demands Joriram to pay maintenance for three children. Joriram is the youngest father in this matriarchal joint family. During such times it is difficult to decide who is the father of each child in the same community. There is one single wife by name Doma for 3 brothers, Paljor, Gyan, Uday. The youngest husband is 10 year younger to the wife.
In Dapur district, an Adivasi Sarpanch has 13 wives and he is now trying to get a fourteenth one. When he is in financial trouble he sells one of his wives.
A new problem has arisen among the Adivasis in Vidarbha, destroying their culture. The Government Officers, contractors and businessmen are going to interior places where young Adivasi girls fall prey to their lust. They obtain the free company of the Adivasi young girls from their Gotul for a few Rupees worth of wine. These young girls become "Unwed mothers", and their children have no names of their fathers.
From one single district of Mayur Bhanj, two thousand Adivasi young girls have been sold and made prostitutes whereas in Nizamabad district there are ten thousand Adivasi girls who have become Yogini, i.e. religious prostitutes in Hindu temples.
There are various problems like these under the guise of Adivasi customs and traditions. The problems more than poisonous than the atomic bomb at Pokharan have arisen and Hindu law is unable to start any process to give justice under it. Even Nyaya Panchayats of Adivasis are helpless in rendering any justice. Now where should they go to seek justice is the main problem facing the Adivasis in the democratic country.
Gana-Panchayat administrating justice
The laws of Gana Panchayat though unwritten, are traditionally been held valid for generations and are binding on Adivasi society even today. Gana Panchayat of Adivasis is the supreme legal authority of justice to the community. Those who disregard these laws are excommunicated from the society. In olden days the method of punishment was eye for eye, hand for hand, blood for blood but these were not found in the system of Adivasi Gana Panchayat. The death penalty is just like the murder of human being, the Adivasis believe. The punishment given by these Gana Panchayats included excommunication, forcing to give feast to the whole community, to shave off half mustache, or to take a procession through a village sitting on a dog. Last mentioned punishment is for severe types of crimes because dog or such animals is totem of Adivasi Gana and insult of this totem is a very serious matter. For example Adivasi Netam, Kurmi or Doma people worship dog as a totem, and do not allow it to be insulted.
In America Red Indian Adivasi's unfaithful women used to be killed by drowning. Severe offenses were punished by hanging till death. Such punishment was not practiced by the Adivasis of India.
On 6th August 1994 in Shahapur Mumbai, an Adivasi women Kanhi Mondali was auctioned in Tambali village in the presence of five hundred people. The fine imposed by the village Panchayat amount of Rs.551/- was beyond her capacity therefore she was auctioned for ten thousand rupees. There is no system of oxen the women in the Adivasi Gana Panchayat. This has system of oxen Adivasi in the name of Gana Panchayat is the system of exploitation of Adivasi women by the established leaders. The matter did not end here. The woman was beaten till all her cloths were torn out though she was pregnant she was stripped naked and kicked on her stomach. Such an action violating the human rights was not dealt with by the established Hindu laws. Patriarchic culture on the basis of beastly strength has made a slave of a Adivasi woman.
The marriage system of Adivasi and the Adivasi festival are entirely different from those of Hindus. During marriage Adivasi give special respect to their relatives. A pole of Sal tree is considered very important and unless the bridegroom sits on the altar made of tree of Sal or Moha the marriage has no meaning. There is no "mangalastke" or any "saptapadi". Saptapadi is condemned whereas according to Hindu law saptapadi is indispensable for the legal marriage.
The customs traditions are even now in existence in the Adivasi padas but some urban Adivasis coming in contact with the progressive and educated peoples are denying their own culture and coming in the stream of Hinduism. Such white collar Adivasis are proud of Hindu culture and thus are committing injustice on own culture. In the city of Yavatmal on 19th May 1994 a youth by name Shamsunder Kumre got married without Mangalastke or saptapadi. This has been considered as a horrible insult by one wife of Adivasi officer on higher post, and since then we are being cursed by these people.
Adivasis converted into Christianity are married in the Churches according to the Christian system. There is no vermilion on the forehead and there is no wine and there is no dancing whereas in the Adivasi social ceremonies a dance and music have got first preference. From the birth of child till his death music is a part of life, accepted by Gana Panchayat. Songs of Adivasi are based on a particular 'raga' i.e. classical music.
Adivasi is an offender before judge
The incident of violation of human rights against this non Hindu Adivasi are not taken note of on national level. They have been subjected to malnutrition. The government have got cores of rupees for atomic explosions and to enter the rank of powerful nations on international level but they have no money to stop the starvation of Adivasis. If Mahatma Buddha would have been alive he would have been very sad to see the dieing malnourished Adivasi children for want of food because of extravagant expenditure on these atomic tests. These children who died out of starvation are definitely not Hindus. The people collecting crores of rupees to convert the Adivasis into Vanavasi and thus destroy them are Hindus. In the name of development of Adivasis crores of rupees are being spent under the guise of Adivasi Special Plan on the "Hindu model". Adivasi is being projected on the world canvas as an experimental animal in the museum for the experiment of anthropologist. A large segment of Hindus in this country is coming against the fundamental rights which give protection to the Adivasis in the Constitution. The rights established by law can remain safe only if there is a social consciousness in the society but if these rights are opposed by the society itself then no law, no parliament, or no court of justice can take full responsibility of it with all its implied understandings. Thus Hindu society itself comes in the way of protection of rights of Adivasis.
Adivasi has forgotten his own Royal glory and standing in front of Hindu law in India as an accused, whereas pastoral tribes of Aryans who were standing as accused in front of Gana Panchayats of Adivasis have become the law givers. According to Hindu Law one has to take an oath in the court of justice in the name of scriptures, which accept existence of God whereas an Adivasi who does not believe in the existence of God has to take an oath in the name of his totem. These totems should be related with trees and plants, birds, animals or other objects related with the nature. The method of jurisprudence of Adivasi Gana Panchayat is based of a particular value of morals, judgment. If God has to face a man in in front of court of justice actually he is killing god in his own heart. This Hindu principle is totally unacceptable to the Gana Panchayat of Adivasis.
In this country the laws are of Hindus, the method of justice is Hindu, judges are Hindus, interpreters of these laws are Hindus whereas an Adivasi who is not a Hindu is standing in front of these people as an accused. The crime of Adivasi is merely that he is not a Hindu. He is asking for his lost humanity, for his old royal glory, when he asserts himself that he also is a human being and rebels to keep intact his existence it becomes the matter of treachery against the nation according to the laws of Hindus. He is labeled as terrorist or Nakshalvadi and he is booked under laws like a TADAs. At this time Adivasi is deprived of his human existence and becomes the prey of establish order. But in reality Adivasi does not die, while he is suffering he is condemning the system silently. Dr Babasaheb Ambedkar asked Ranade, Gandhi, Jina whether there is any society in the world which has got criminal tribes, whether there are any people living in hills and leading a life in stone age. Those who do not have the understanding of use of clothes, such Adivasis are in crores of India. There are crores of criminal tribes in a community. One may be surprised to hear this thing and one will express ones opinion whether it is a Hindu culture or a anathema against the humanity, for which we have no reply yet.
Adivasi is a criminal in the eyes of Hindu society. Nobody is born as a criminal. He is made a criminal. Those who made Adivasi criminals, is the is the Hindu majority society and there are no laws in existence which can punish the majority, as Burk has said. There is no method of punishing a majority group has yet discovered. A singular offender can be punished by law but law is incapable of punishing the whole society which has become ready to destroy the law itself. Who will punished the society which denies independent law of Adivasis, is a burning question facing the social system. Will somebody open the doors and free the Adivasi entrapped by the method of justice in this land known for humanitarian ideas, and thereby convert the show of good nature into reality?
About of this document:
Taken from chapter three of Latari Kawadu Madavi's PATANA and Translated into English from Marathi by Dr. K. Jamanadas
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