Tribal Culture(s) and the Supreme Court: A Critique of Chebrolu Leela Prasad & Ors. v. State of A.P. & Ors.

In a recent judgment in Chebrolu Leela Prasad Rao & Ors. v. State of A.P. & Ors. [1] (Judgment), a five-judge Constitution Bench of the Supreme Court decided a reference as to the constitutional validity of an executive order passed by the erstwhile State of Andhra Pradesh that provided 100% reservation for Scheduled Tribe (‘Tribe’) candidates in relation to the posts of teachers in schools in the scheduled areas.

The present piece does not intend to examine the correctness, or otherwise, of the decision arrived at by the Court. It is instead concerned with certain obiter observations made by the Court in the judgment in relation to the way of life of the Tribes, and the place that Tribal culture, in its many varied manifestations, occupies within our nation.

The observations in question appearing in paragraph no. 107 (‘relevant paragraph’) of the judgment are prefaced by a discussion in the preceding paragraphs as regards the historical basis for the provision for reservation for the scheduled castes. After a brief examination of the said topic, the judgment in question then turns to the historical basis for Tribal reservations in the relevant paragraph and observes as under:

“107. Reservation provided to scheduled tribes and constitution of scheduled areas is for the reason as systems concerning way of life are different. They were in isolation, differed in various aspects from common civilization such as the delivery of justice, as regards legal system, the culture, way of life differs from the ordinary people, their language and their primitive way of life makes them unfit to put up with the mainstream and to be governed by the ordinary laws. It was intended by the protective terms granted in the constitutional provisions that they will one day be the part of the mainstream and would not remain isolated for all time to come. The Scheduled Tribes Order, 1950 was promulgated to include groups and communities which were not part of social society, based on characteristic and culture, which developed by that time. The formal education, by and large, failed to reach them, and they remained a disadvantaged class, as such required a helping hand to uplift them and to make them contribute to the national development and not to remain part of the primitive culture. The purpose of the constitutional provisions is not to keep them in isolation but to make them part of the mainstream. They are not supposed to be seen as a human zoo and source of enjoyment of primitive culture and for dance performances. The benefits of developments have not reached them, and they remain isolated in various parts of the country. The social and economic upliftment and education are necessary for Tribals to make them equal.”

Before any further discussion, one may advert to the closest meaning of the term ‘primitive’ in the present context which can be said to be “relating to or denoting a preliterate, non-industrial society or culture characterized by simple social and economic organization.” [2] A more contemporary usage of the term coveys a meaning of “lacking in worldly wisdom or informed judgment”. [3] As far as the meaning of the term ‘culture’ is concerned, it is understood in a wide sense and refers to the “way of life, especially the general customs and beliefs, of a particular group of people at a particular time”. [4]

Irrespective of the exact usage intended in the relevant paragraph, the aforesaid exposition by the Court, and the various underlying assumptions that propel it, are extremely problematic to say the least.

Keeping aside the evident problems in the anthropological sense in the judgment’s seeming conflation of an animistic way of life as being primitive and undesirable, the judgment’s proffered understanding of the underlying basis for the union of the Tribes with the newly independent Indian state is also not in consonance with the record of the historical deliberations as contained in the Constituent Assembly Debates (‘Debates’). A conclusion arrived at at the very beginning of the relevant paragraph is that the Tribals’ distinct way of life coupled with their innately primitive culture is what made it impossible for them to be assimilated into the so-called ‘mainstream’. To compound matters, the mainstream is alternatively referred to as ‘ordinary’ people and ‘social society’, terms which are left undefined. The unarticulated premise of the assertion in the relevant paragraph evidently seems to be that the Constitutional guarantees and protections offered to Tribals were not as a result of any active agency on the part of the Tribals but rather as a result of the primitive nature of their culture, and which left the mainstream non-Tribal society with no other option but to practice a ‘distancing’ exercise in the hope that in the years to come the Tribals would be weaned off their seemingly indispensable primitive culture. Thus, it is really the benevolence of ordinary people and social society that is purportedly reflected in the Constitutional guarantees that Tribals enjoy today.

A detailed examination of the deliberations of the Constituent Assembly would belie such an impression. When the Constituent Assembly eventually took up this issue of tribal rights, there were two markedly different schools of thought. On the one hand, Tribal leaders such as Jaipal Singh advocated a strong sense of Tribal ‘pan-nationalism’ and stressed upon the immutable distinctiveness of the Tribals when compared to the non-Tribals; [5] on the other hand, a polar-opposite school of thought sought to adopt an overly integrationist approach, and the proponents of this view criticized the provisions allowing for the differentiated political and legal treatment of Tribal areas and called for Tribals to forthwith be assimilated into the larger fabric of society that was emerging in newly independent India. [6] Ultimately, the Constituent Assembly took a middle path which is termed as ‘soft-integrationist’ and which is best articulated in K. M. Munshi’s speech to the Constituent Assembly wherein he delineated this policy as under:

“We want that the Scheduled Tribes in the whole country should be protected from the destructive impact of races possessing a higher and more aggressive culture and should be encouraged to develop their own autonomous life; at the same time we want them to take a larger part in the life of the country adopted. They should not be isolated communities or little republics to be perpetuated forever.” [7]

Thus, the Constituent Assembly specifically validated the development of autonomous life and culture of the Tribals, and the preservation of this culture and way of life was actively encouraged and not subjected to any time limits, with the only caveat that it should not result in political and social alienation from the larger entity that is India. This approach has been understood as meaning that the treatment of Tribal identity within the Indian Constitutional framework seeks a commitment to India as the new nation, while simultaneously allowing for the retention and development of a relatively autonomous culture and way of life. [8] The resultant Articles 15(4), 15(5), 16(4), 16(4A), 46, 342 etc. of the Constitution of India, including Schedules V and VI thereof, reiterate this understanding.

Hence, the protection of the autonomous culture and way of life of the Tribals is an essential concomitant of the Constitutional ‘bargain’ that witnessed their union with the Indian state. This was definitely not a unilateral act of benevolence by non-Tribal society. The aforesaid conceptualization of the role and privileges of Tribal societies has been reiterated in relatively contemporaneous times by the enactment of the Forest Rights Act, 2006, protecting the age-old rights of forest dwelling Tribes, as also by India’s support for the Declaration on the Rights of Indigenous Peoples, 2007, various Articles of which Declaration unequivocally reiterate the right of Indigenous peoples to practice, maintain and rejuvenate their cultural traditions and customs. The Supreme Court has also consistently cautioned about implementing policies which would have the impact of interfering with the autonomy of the Tribes. In Samatha v. State of Andhra Pradesh & Ors. [9], the Court observed as under:

“…This purposive interpretation would ensure distributive justice among the tribals in this behalf and elongates the constitutional commitment. Any other interpretation would sow the seed beds to disintegrate the tribal autonomy, their tribal culture and frustrate empowerment of them, socially, economically and politically, to live a life of equality, dignity of person and equality of status.”

Moving on from the historical and Constitutional context of the guarantees and protections offered to Tribals, we may now consider the textual and symbolic concerns that come forth in relation to the exposition in the relevant paragraph, and which are dealt with hereunder.

Firstly, without any examination or identification of a specific practice(s), which is seemingly problematic or abhorrent, the judgment proceeds to sweepingly label Tribal culture as a whole as primitive, with frequent and unrelenting usage of the term in the relevant paragraph. There is no engagement at all with the nuances of Tribal culture, either at the stage of the framing of the Constitution or the evolution of this culture over the years. Further, there is no acknowledgement of the tremendous diversity in cultural practices amongst the various distinct Tribal communities. Considering the pejorative usage of the term ‘primitive’ in common parlance, the judgment evidently berates the way of life of millions of Indian citizens without any engagement whatsoever with their traditions and practices. In fact, Tribals can, by that benchmark, be quite correct in interpreting ‘our’ [10] various traditions and practices as being primitive. For instance, a Tribal representative at the Constituent Assembly had this to say during the course of the Debates as a furious riposte to the notion that Tribal culture was inferior in any way, and a lot of the issues which are highlighted, despite the underlying generalization, can be said to be of relevance in the contemporary day and age as well:

“The people of hills had their own culture which was sharply differentiated from that of plains. The social organization was that of the village, the clan and the tribe and the outlook and structure were generally democratic. India has to rise to that feeling or idea of equality and real democracy which tribal people had. Among the tribesmen is there no difference between class and class. Even the Rajas (kings) and Chiefs work in the fields together with the laborers. They eat together. Is that practiced in the plains? The whole of India has not reached that level of equality. Do you want to abolish that system? Do you want to crush them and their culture must be swallowed by the culture which says one man is lower and another higher? In the plains the women is just beginning to be free now, and is not free yet. But in some of the hill districts the women is the head of the family; she holds the purse in her hand, and she goes to the fields along with the man .... In the plains of Assam there are some people who feel ashamed to dig earth. But the Hillman is not so. Will you want that kind of culture to be imposed upon the Hillman and ruin the feeling of equality and the dignity of labor which is existing among them?” [11]

Secondly, the text used in the relevant paragraph is also a classic case of ‘othering’ which has been defined as a discursive process of defining a perceived subordinate group “in a reductionist way which ascribe problematic and/or inferior characteristics to these subordinate groups”. [12] By its juxtaposing of the undefined concepts of ‘ordinary’ persons and ‘social society’ as opposed to the primitive Tribals, the judgment unwittingly provides judicial imprimatur to a pejorative image of Tribal society and actuates the attendant ghettoization.

Thirdly, on a related note, the themes at play in the relevant paragraph demonstrate an eerie similarity to ethnocentrism, or to Edward Said’s conceptualization of ‘orientalism’ [13] which has been described as a form of stereotyping that has “fuelled the rhetoric of colonialism” and reflected the “West's reasons for ruling the East” [14]. This latent orientalism can be best gauged through juxtaposing the observations in the relevant paragraph with those in the controversial judgment of the Court of Appeal of British Columbia in Canada v. Singh; Re Munshi Singh [1914] B.C.J. No. 116 (C.A.), which in the early 20th century infamously denied persons of Indian-origin the right to immigrate to Canada in the following words:

“99. Therefore, it may well be said that when the words "Asiatic race" are used in the order in council, P.C. 24, the words are, in their meaning, comprehensive and precise enough to cover the Hindu race, of which the appellant is one. It is plain that upon study of the question, the Hindu race, as well as the Asiatic race in general, are, in their conception of life and ideas of society, fundamentally different to the Anglo-Saxon and Celtic races, and European races in general.

100. Further acquaintance with the subject shows that the better classes of the Asiatic races are not given to leave their own countries - they are non-immigrant classes, greatly attached to their homes and those who become immigrants are, without disparagement to them, undesirables in Canada, where a very different civilization exists. The laws of this country are unsuited to them, and their ways and ideas may well be a menace to the well-being of the Canadian people. I am supported in expressing views which might possibly be deemed as extra-judicial - although I submit not, when passing upon the constitutionality of statute law - by the language of Duff, J. in Quong-Wing v. The King, supra, at p. 465.

101. The Parliament of Canada - the nation's Parliament - may be well said to be safeguarding the people of Canada from an influx which it is no chimera to conjure up might annihilate the nation and change its whole potential complexity, introduce Oriental ways as against European ways, eastern civilization for western civilization, and all the dire results that would naturally flow therefrom…”

102. In that our fellow British subjects of the Asiatic race are of different racial instincts to those of the European race - and consistent therewith, their family life, rules of society and laws are of a very different character - in their own interests, their proper place of residence is within the confines of their respective countries in the continent of Asia, not in Canada, where their customs are not in vogue and their adhesion to them here only give rise to disturbances destructive to the well-being of society and against the maintenance of peace, order and good government.”

While the aforesaid judgment refuses entry on the basis of the purported incompatibility of local mores and customs with the immutable racial characteristics of the prospective immigrants, the judgment of the Supreme Court in the present case seemingly makes the discarding of the identified primitive Tribal culture, through infusion of education etc., a necessary concomitant to membership in the larger non-Tribal community. Viewed from another angle, much as any Indian would seethe at being referred to as belonging to a race which was unsuited to be accommodated in a western nation, it is equally unacceptable and paternalistic to refer to Tribal life and culture as being primitive.

Fourthly, the last observation in the relevant paragraph which refers to the need to eschew interaction with Tribals while being guided by the sole quest for entertainment, if read as a protest against commodification of Tribal culture, is very well taken. However, this commodification, which is largely tourism-centric and driven by ‘ordinary’ people cannot result in a vilification of Tribal culture itself as lacking inherent worth and value. A limited understanding of the richness of a culture or having been exposed only to limited manifestations of its expression cannot lead to a valid condemnation of the culture itself as being unworthy or as liable to be discarded. Nor does engagement with the age-old way of living practiced by a Tribal culture automatically translate into a condemnable embrace of the primitive and the taboo.

Finally, and most seriously from a legal perspective, the judgment represents an extreme conceptualization of cosmopolitanism which pits Tribal culture against development and modernity, with the two being seen as mutually exclusive. In this sense, an extreme form of cosmopolitanism is one which seeks to obliterate all difference, and bring about a cosmopolitan uniformity based on one dominant cultural outlook and way of life and a vague common goal of development. [15] However, the dangers of this approach are not far to seek. For one, it starkly ignores the inherently subjective understanding of what constitutes a ‘good life’. Ronald Dworkin has famously argued that a ‘good life’ cannot be sought to be objectively measured based on the ‘product value of living’ but rather it is the subjective satisfaction that the person garners from living his/her life in that fashion that truly matters. Dworkin elucidates upon this aspect in the following words:

“We may count a life’s positive impact – the way the world itself is better because that life was lived – as its product value… …It is difficult to find enough product value in most people’s lives to suppose that they have meaning through their impact. Yes, but for some lives, penicillin would not have been discovered so soon and King Lear would never have been written. But if we measure a life’s value by its consequence, all but a few lives would have no value, and the great value of some other lives – of a carpenter who pounded nails into a playhouse on the Thames – would be only accidental. On any plausible view of what is truly wonderful in almost any human life, impact hardly comes into the story at all.” [16]

Will Kymlicka similarly observes that in the absence of ‘group differentiated’ rights, minority cultures such as Tribal cultures are denied the same range of options which are otherwise enjoyed by the majority culture i.e., the members of the Tribal culture are denied the opportunity to live and work within an ecosystem of options offered by their own culture or group. [17] A Tribal would then only be left with two self-destructive options viz. either to abandon one’s culture, or to accept second-class status within the nation [18]. Kymlicka states in this regard that:

“In a democratic society, the majority nation will always have its language and societal culture supported, and will have the legislative power to protect its interests in culture-affecting decisions. The question is whether fairness requires that the same benefits and opportunities should be given to national minorities. The answer, I think, is clearly yes. Hence group-differentiated self-government rights compensate for unequal circumstances which put the members of minority cultures at a systemic disadvantage in the cultural marketplace, regardless of their personal choices in life.” [19]

In a similar vein, Kwame Anthony Appiah has denounced a universalistic and uniformity-driven conceptualization of cosmopolitanism and has been a staunch advocate for particularistic attachments and affiliations. [20] Appiah’s embrace of the diverse is seen in his comparison of child- rearing methods employed by contemporary British society as compared to those employed by a Tribal culture, with the former requiring the father to take the responsibility for his offspring and the latter casting this primary responsibility on the maternal uncle of the child i.e., the mother’s brother. Appiah observes that even though both these cultures might very well view the methods of the other as strange and inexplicable, each of these methods, in fact, achieve the primary function of child rearing. [21] Therefore, a dogged insistence that only one of these methods is correct cannot obviously be countenanced, and the ultimate choice is a subjective one premised upon the norms and values of the culture that a person is brought up in. [22] Appiah clarifies that different cultures may well be able to agree upon the universal values at play, however, the manner of attaining them may be markedly different and driven by cultural and historical context. [23]

The criticism of a unilateral and top-down imposition of uniform and indiscriminate polices upon Tribal and/or minority cultures is not restricted to philosophers alone, but has also been strenuously articulated by the Supreme Court. In Nandini Sundar & Ors. v. State of Chattisgarh [24], the Supreme Court in a searing indictment of the dehumanization that Tribals routinely experience at the hands of the State, pertinently identified the problem as one of misplaced priorities instead of any inherent primitiveness in Tribal culture in the following words:

“14. …Instead of locating the problem in the socio-economic matrix, and the sense of disempowerment wrought by the false developmental paradigm without a human face, the powers that be in India are instead propagating the view that this obsession with economic growth is our only path, and that the costs borne by the poor and the deprived, disproportionately, are necessary costs.”

In much the same way, the Constitution not only protects, but also celebrates local associative bonds, and does not, in a normative sense, call for a ‘white-washed’ uniformity. It can be said that:

“…The Indian Constitution, while creating a cosmopolitan uniting bond based on the notion of a common Indian citizenship, at the same time celebrates the richness and diversity that is offered by the varied languages, cultures and religions that exist within Indian society. 25

…While the Constitution creates a cosmopolitan citizenship based on the fundamental rights assured to every individual, it also by means of its recognition of group identity values and nurtures these associative links for the benefit of its citizenry.” [26]

It must be clarified that the judgment of the Supreme Court in the present case at various instances undoubtedly calls for economic, educational and health-care advancement of Tribal communities and there can be no cavil with such a sentiment. No one can question the fact that educational and economic backwardness and lack of access to health and housing is acutely felt in many Tribal communities. However, to blame the state of affairs on the continuation of an indigenous way of life, and to postulate a stand that the achievement of advancement in the aforesaid spheres requires a rejection of Tribal culture, is to miss the wood for the trees.

Education in this sense is viewed as being prophylactic in nature with the attendant disease being Tribal culture, instead of considering education as a means of providing access to wider opportunities and as a tool for intellectual advancement. While every society, culture and way of life is legitimately open to criticism and to an identification of elements therein that require improvement, any attempt at reform can never be grounded upon the call for abandoning an entire way of life.

To conclude, one of the fundamental values of our Constitution is that of respect for diversity. As the Supreme Court observed in Kailas & Ors v. State of Maharashtra [27] :

“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.”

Particularly in the present times, when we are forced to confront the stark reality of the tenuousness and fragility of our modern way of life, this respect for alternative conceptualizations of living must not only be strengthened, but must also continue to reflect in the judgments of our Constitutional Courts.

[1] Judgment dated 22.04.2020 in Civil Appeal No. 3609 of 2002.

[2] Angus Stevenson, OXFORD DICTIONARY OF ENGLISH, 1410 (1989).

[3] Merriam-Webster.com. 2020. https://www.merriam-webster.com (24 April 2020).

[4] Cambridge Dictionary, 2020, https://dictionary.cambridge.org (24 April 2020).

[5] J. K. Das, HUMAN RIGHTS AND INDIGENOUS PEOPLES 150 (2001).

[6] UDDIPANA GOSWAMI, CONFLICT AND RECONCILIATION: THE POLITICS OF ETHNICITY IN ASSAM 116 (2014).

[7] Supra note 5, at 151.

[8] Pooja Parmar, Undoing Historical Wrongs: Law and Indigeneity in India, 49 OSGOODE HALL LAW J. 491-525, 524 (2012).

[9] (1997) 8 SCC 191.

[10] Intended as a reference to the ‘mainstream’, or non-Tribal society i.e. the populace which is not identified as being part of a ‘Scheduled Tribe’ under the Constitution.

[11] Shubhankar Dam, Legal Systems as Cultural Rights: A Rights Based Approach to Traditional Legal Systems in INDIANA INTERNATIONAL & COMPARATIVE LAW REVIEW, Vol. 16, No. 2, pp. 295-335, 303 (2006)

[12] Sune Qvotrup Jensen, Othering, Identity Formation and Agency, in QUALITATIVE STUDIES. 2011; Vol. 2, No. 2, 63-78.

[13] Edward W. Saïd, ORIENTALISM (1978).

[14] Council of Europe, MOSAIC: THE TRAINING KIT FOR EURO-MEDITERRANEAN YOUTH WORK, 86 (2010).

[15] See further in this regard, Amit George, MINORITY RIGHTS IN A COSMOPOLITAN WORLD, 115 (2018).

[16] Ronald Dworkin, JUSTICE FOR HEDGEHOGS, 198 (2011).

[17] Will Kymlicka, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS, 109 (1996).

[18] Id. at 112.

[19] Id. at 113.

[20] Howard Adelman, The Doctrine of the Responsibility to Protect: A Failed Expression of Cosmopolitanism, in ROOTED COSMOPOLITANISM: CANADA AND THE WORLD, 187 (Will Kymlicka & Kathryn Walker eds., 2012).

[21] EXAMINED LIFE: EXCURSIONS WITH CONTEMPORARY THINKERS, 92 (Astra Taylor ed., 2009)

[22] Kwame Anthony Appiah, Relativism. Culture and Understanding, in RELATIVISM: A CONTEMPORARY ANTHOLOGY, 492 (Michael Krausz ed., 2010).

[23] Id.

[24] (2011) 7 SCC 547.

[25] Supra note 15, at 318.

[26] Id. at 326.

[27] (2011) 1 SCC (Cri) 401.