#FromPolicyToPeople: Reclaiming tribal land rights, one stone at a time

Bar & Bench August 16 2018

In this series, we try to assess the consequences of laws on the people they are intended for. How do laws, framed in Delhi, impact people in the corners of India? Do people understand laws framed for them? What is their impact on the targeted people?

This is the sixth story on the intersection of law and society by Raksha Kumar.

Reclaiming tribal land rights - one stone at a time

Binary Prakash Kujur sat alone by the edge of a hill that overlooks the Badalkhol forests in Jashpur district of Chhattisgarh. “I come here to think. Strategise,” he said.

Many people in his village of Butanga in Bagicha Tehsil have spent the last month thinking, organising and protesting.

One does not require arms or loud voices to lodge a protest, according to Kujur. All one needs is to recognise exploitation and have the courage to resist it.

Villages in Jashpur have been protesting the non-adivasi take over of adivasi land, in the form of mines or townships, for many decades now. First, there were the jungle wale who fought for us, said Kujur, referring to armed extreme left-wing rebels commonly called Maoists.

Now, we adivasis feel empowered enough to fight our battles ourselves,” he added.

Their mode of protest is brilliant in its simplicity. They erect stones inscribed with Articles from the Constitution and sections from the Panchayats (Extension to Scheduled Areas) Act (PESA), declaring that adivasis have the right to determine the fate of their lands. The stones are meant to educate those who don't know the law, usually fellow villagers.

And to remind those who have forgotten - like the government,” said Philmone Tigga, resident of Butanga.

Jashpur sits on the border of Jharkhand and is surrounded by the coal-mining districts of Raigarh, Korba, and Sarguja in Chhattisgarh. While driving to Jashpur, roads are alternately smooth and patchy. When the roads are smooth enough for vehicles to glide over them, it isn't hard to guess the presence of mines in the vicinity. Large trucks that transport coal need fine quality roads. Rough, muddy and patchy roads are limited to village areas.

Butanga, home to about 300 people, is at the end of one such patchy road. “The large swathes of coal mines used to be forests until a few years ago,” said Tigga, whose family has lived in the village for more than three generations.

Philmone Tigga

Philmone Tigga

An aerial view of Jashpur shows unscrupulous scooping out of the green cover, like dollops from a brick of pistachio ice cream.

Origins of Pathalgadi

Sometime around June 2017, a few villages in the neighbouring state of Jharkhand began evoking the Indian Constitution to reclaim their right over their lands. Emerald green stones with provisions of Article 19(5) and Article 244(1) spelt out on them, were erected. Since these stones or pathars were being implanted into the earth or gaad’na, the process was called pathalgadi.

Pathalgadi in Bachraw village

The process is not new. When the PESA Act was passed in 1996, such stones were laid in every village to educate the villagers about the new legislation.

Stone from 1996. The stone was erected to educate people when the PESA Act was passed.

Article 19(5) places ‘reasonable restrictions’ on every Indian citizen’s fundamental right to move freely throughout the country and to reside and settle in any part of the territory of India. Therefore, Article 19(5) may be interpreted to mean that in the interest of the Scheduled Tribes, non-adivasis do not have the right to settle in adivasi areas or buy their land. [More on Article 244 (1) later]

So, the Constitution provides us protection,” asserted Kujur, “but we were unaware of it”. If it took us seventy years to understand our own Constitution, what does it say about levels of our education?, he asked.

After the people of Butanga erected the stone on 22 April, a mob from the town of Jashpur reached their village six days later and broke down the stone.

They called it a Sadhbhavana rally,” said Kujur. “There was no Sadhbhavana there at all,” he added.

There is a hollow frame of metal wires today, in the place of the stone that inscribed the Constitution.

The stone which had Articles of the Constitution, that a mob from Jashpur town broke down in April.

Pathalgadi in Jharkhand

While discontent with successive governments’ idea of development has always been prevalent among adivasis, the Pathalgadi movement gained steam in Jharkhand’s Khunti, Gumla, Simdega and West Singhbhum districts in 2016, when the ruling BJP government made efforts to amend the Chotanagpur Tenancy Act of 1908, and the Santhal Pargana Tenancy Act of 1876.

Both pieces of legislation, enacted during the colonial rule, restrict the sale of adivasi lands to non-adivasis.

Even the British recognised tribal rights on tribal lands,” said John Junas Tiru, an adivasi leader from Jharkhand. “And the Indian government was attempting to change those laws against us!

However, in June 2017, the governor of Jharkhand, Droupadi Murmu, returned the Bills to the Assembly, seeking revision. The Acts stand unchanged for now. But the fire had caught on.

Adivasis across southern Jharkhand felt energised by Pathalgadi and decided to keep the flame burning.

In April this year, the Pathalgadi movement spread to northern parts of Chhattisgarh. Emboldened by the arrests of adivasi leaders like Vijay Kujur and Herman Kindo in Jharkhand, the protests in Jashpur were lead by Joseph Tigga, another adivasi leader, before he was arrested in May. The leaders are out on bail now.

Charges on all of the leaders are similar - creating hatred among people (IPC Section 153A), obstructing public servants from duty (IPC Section 186) and criminal conspiracy (IPC Section 120 B).

If we ask for our rights, how is it creating hatred among people?” asked Anastasia Kujur, wife of Dawood Kujur, who is still in jail on similar charges.

What do people in cities do if their homes are taken over by others? Do they sit quietly and not protest? And when they protest, are they charged with Sec 153 A?” she asked. Anastasia Kujur lives with her three daughters in the village of Bachchraon.

Sarv Adivasi Samaj, an umbrella body that works for the betterment of adivasis in Chhattisgarh, took on the struggle after Tigga’s arrest.

We will fight till the end,” said BPS Netam, leader of the organisation, during a press conference in May. “Not everyone understands the importance of our land to us adivasis”, he said.

Land and Identity

While those protesting the take over of adivasi lands are not necessarily averse to roads, brick houses, schools, and hospitals, they feel that land is at the very core of adivasi identity.

Let’s differentiate development and availability of basic facilities to absolute take over of land ownership,” said Father Jacob Kujur, social activist based in Pathalgaon town of Jashpur.

Their lands, with a bed of rich minerals topped by thick forests, mahua flowers and tendu leaves amongst other resources, add to the adivasi identity. Adivasi history, traditions, culture, and language emanate from these resources.

Binary Prakash Kujur owns about five acres of land where he grows rice and some vegetables just enough for his family to sustain itself for a year.

Let's assume these lands are gone, where will I go?” he asked. He admitted to being petrified of moving to a semi-urban area. “I don't have skills required to be employed in a city, what will I feed my children?” he asked.

Tribal economy was never dependent on the exchange of money. Barter and sharing kept their societies afloat. A significant example of this is the importance of Community Forest Ownership under the Forest Rights Act of 2006.

Madhu Ramnath, in his book Woodsmoke And Leafcups: Autobiographical Footnotes To The Anthropology Of The Durwa, writes about such a unique adivasi identity.

Important as agriculture is, it is the range of wild foods that people consume which endows them with their independent disposition. There are over 500 species of plants and animals that the Adivasi procure and judiciously manage.

Close to nine percent of India’s population is tribal. “Our existence will be at stake, if we let go of our lands,” said BPS Netam.

The PESA Act

Another Article of the Indian Constitution spelt out on the stone slabs is Article 244(1), according to which the provisions of the Fifth Schedule of the Constitution shall apply to the administration and control of the Scheduled Areas (except Assam, Meghalaya, Tripura and Mizoram). At the core, this means structures of administration, bureaucracy and decision making will be different in tribal areas.

Unlike in other parts of the country, where the lowest level of administration are Panchayats, administration of Scheduled Areas is primarily in the hands of Gram Sabhas or village councils. All the major decisions are taken by these traditional bodies. Every adult resident of a village is a member of the Gram Sabha, therefore making the process democratic.

A house in the village of Bachraw village, Jashpur District. Translates to: Gram Sabha is greater than Lok Sabha and Vidhan Sabha.

In total, thirteen districts of Chhattisgarh are listed in the Fifth Schedule - Jashpur, Korba, Surguja, Balrampur, Surajpur, Koriya, Bastar, Dantewada, Kanker, Sukma, Bijapur, Narayanpur, Kondagaon. And Raigarh, Bilaspur, Gariaband, Dhamtari, Durg, Rajnandgaon are partially covered by its provisions.

In all these areas, provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 or PESA apply. The PESA Act also mandates that the Gram Sabha will have the final word on decisions concerning land acquisition and natural resources management.

We will now use laws like PESA and Forest Rights Act to claim our lands,” said Silvester Minj, a resident of Butanga. He learnt about these laws from his grandsons who study in class 9 and 10 respectively. “They were taught by the Pathalgadi movement leaders in their schools,” he said.

Butanga village, Bagaicha Tehsil

However, the inscription of PESA on stone slabs is not new to the 50-year-old Minj. He remembers such stones coming up in many villages in the previous decade when former bureaucrat Dr BD Sharma’s Bharat Jan Andolan picked up pace in the region.

It takes many many mass movements for the powers that be to listen to our demands,” he said.

The government's response

The Jharkhand government declared Pathalgadi to be “unconstitutional”. But, it has not yet explained how inscribing the Constitution on a stone or claiming fundamental rights can be unconstitutional.

This is akin to calling special laws for indigenous people in the US, unconstitutional,” said Shishir, a Bilaspur-based human rights lawyer. “Makes no sense,” he added.

In contrast, in Chhattisgarh, Chief Minister Raman Singh, who will face elections in a few months, called this a valid movement. Tribals constitute about 32 percent of Chhattisgarh’s population.

But, there was a catch. Singh, in May, said he feared the tribals were being misled by Christian Missionaries, who are encouraging them to rebel against the government.

We are tired of such infantilising by the government,” said BPS Netam. “If we want to convert to Christianity, we will. And if we don’t, we won’t. No one will ‘mislead’ us,” he added.

Religious conversion in these regions have a decades old history. Jashpur was traditionally ruled by Dilip Singh Judeo’s family. Judeo, who died in August 2013, was the Minister of State for Environment and Forests in Atal Bihari Vajpayee’s cabinet.

But, he was most famously known for “reconverting” tribals to the Hindu fold or what is widely known as ghar wapsi. After his death, his son, Prabhal Pratap Singh Judeo, has taken over the task.

Many tribals say they are not Hindu, so the question of “re-conversion” does not arise.

Jashpur has one of the largest Christian populations in Chhattisgarh. Since it was tucked away inside the forests and saw little of the state government, the people naturally turned to the missionaries who provided them basic facilities like schools and hospitals. This is not to rule out some reports of forceful conversations from Christian missionaries in the area.

We are only asking that our struggle for land rights not be muddled up with the politics of religious conversion,” said Anastasia Kujur.

Chhattisgarh Chief Minister, Raman Singh, claimed that villagers erecting stones to create awareness about their constitutional rights were motivated by Christian missionaries.

Another accusation by several ministers of both states has been that the villagers who are erecting stones are doing so on the behest of the Maoists.

If we were Maoist, we would pick up arms,” said Bhim Singh Porte of Sarguja. “The ideology of Maoists is that they reject the Indian Constitution and we are proudly flaunting it! How can we be clubbed in the same group?” he asked.

Moreover, residents of Jashpur remind Raman Singh that a few years ago he proudly declared their district “naxal-free”. Maoists are commonly referred to as naxalites as well.

Land Acquisition in Chhattisgarh

Since it is mineral-rich, efforts to acquire tribal lands have been plenty. In December, the Chhattisgarh government passed the Chhattisgarh Land Revenue Code (Amendment) Bill 2017, which gave the government the right to purchase land directly from tribals in scheduled areas, bypassing the acquisition procedure of getting a consensus from Gram Sabhas or even conducting a social impact assessment.

Tribal communities across the state opposed the law and less than a month later, in January this year, the government withdrew the amendment.

People living in fifth schedule areas are not unfamiliar with such attempts to reverse their rights. They are hoping that Pathagadi prominently adds to their long list of resistance movements.

Implanting a flat stone is a religious tradition and sometimes used for remembrance of ancestors.

In our culture, we erect stones in the memory of the dead, this is the first time we are erecting stones hoping that the Constitution is not dead,” said Silvester Minj.

Raksha Kumar is a multimedia journalist focusing on human rights, politics and social injustices. She tweets on @Raksha_Kumar.

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