December 3, 2020

Legal Analysis: Pathalgarhi Movement

Introduction: Pathalgarhi supporters kill 7 in Jharkhand

The supporters of Pathalgarhi movement armed with lathis kidnapped and killed 7 villagers in Singhbum district, West Jharkhand since they opposed the motion. After murdering, the dead bodies were dumped in the nearby forest.[1]

The terrific incident caused outrage and amidst it, Chief Minister of Jharkhand, Hemant Soren ordered setting up of Special Investigation Team (SIT) to reveal the reasons behind the massacre of the villagers[2]. He further claimed; “law is above all and guilty will not be spared” [3]. Earlier in June 2019 NGO workers were abducted and gang raped by people associated with the movement[4]. Hence, a high level meeting was conducted this time to further prevent such instances as it puts a question mark on the law and order of country thereby increasing motivation of such anti-social elements[5].

What is the Pathalgarhi movement?

Pathalgarhi or Pathargarhi derives its name from the stones which is used by the local tribal to demarcate their territory, where gram panchayat reigns supremacy. The movement finds its origin from the ritual of erecting stones at the place of burial on death of a person. Such tribal people consider that their rituals, folks, mores, customs are superior and hence, state cannot intervene unless Gram Sabha allows in grave situations.[6] The movement basically aims Gram Sabha as autonomous independent unit. Stone plaques and signboards have been erected to quash State or Centre’s authority and act as a warning symbol prohibiting outsiders from entering their village. It challenges the state’s action of interference in governing tribal areas without violating their own laws. Pathalgadis are mainly found in Jharkhand along with Chhattisgarh, Odisha and parts of West Bengal and Madhya Pradesh.

Their ties with Birsa Munda

Supporters were led by the ideals of Baba Kunwar Kesarisinh, a controversial cult of Tapi, Gujarat. In 1997, a major turn came in country when he declared independence from Indian laws, calling themselves as owners of India[7]. The Pathalgarhi movement is mostly active in Kunti, Jharkhand where tribal freedom fighter Birsa Munda was born and fought against the Britishers. They had their ceremony where people were armed with AK-47 and no police dares to intervene despite availability of intelligence inputs. Birsa Munda movement achieved ‘Chotanagpur Tenancy Act, 1908’ wherein it was signed that land of tribal people will not be transferred to non-tribal people and hence this is the ideology followed by Pathalgarhis. Also, ‘Santhal Parganas Tenancy Act, 1949’ was based on the same notion to support community ownership

Conception of opium

Jharkhand amongst other states, is considered as a big center for illegal opium cultivation. Pathalgarhis are seemed to be cultivators and hence Jharkhand police for peace and order filed cases and destroyed such crops in various drives launched by them. Moreover, they say that Maoists play an active role in forcing tribal villagers to produce opium in order to fund their movements and operations.

Why did it start?

The Pathalgarhis claim to possess the notion of ‘Real Bharat Sarkar’. They are against the state-central government and perhaps declines their right over the forests and rivers; mainly aim to gain rights over ‘jal, jangal and zameen’ or ‘water, forest and land’. Ever since BJP came into power in 2014 under chief minister Raghubar Das, it is trying to amend the two aforementioned acts that provided safeguards to tribal people. However, government in 2016 amended the acts and allowed acquisition of land in the name of development. There were widespread protests as they feared that their precious land would be taken over. Subsequently, pressure from opposition led withdrawal of bills. The government further came up with ‘Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013’ and got it passed in State Assembly, however, awaiting consent of governor. The opposition claimed it to be more dangerous than previous amendments as it will undermine rights of tribal on land and forest resources.

Specific demands

Pathalgarhis prepared a 11-point charter and sent to president demanding that tribal people should not be considered as naxals and sent to jail. They asked for a separate education board with different curriculum for tribal students. The changes in the acts should be repealed and the police and paramilitary forces must be withdrawn from such scheduled areas. Also, they demand that Gram Sabha should be entitled to the fund set aside for tribal sub plan.[8]

Its legal angle

The Fifth Schedule of Constitution mentions the Scheduled Areas refereed in Article 244(1), commonly known as ‘constitution within a constitution’. It ensures self-governance empowering Gram Sabha to manage affairs according to their traditions and customs. It should aim at preservation of their culture, customs and cultural identity. The legitimacy of their demands are covered under sections 13(3), 19(5)(6) and 244(1) of Fifth Schedule. The Gram Sabha of the scheduled areas of country are entitled to self-governance under the provisions of Panchayats (Extension to Scheduled Areas) act, 1996 or PESA since those areas were not covered under 73rd Constitutional Amendment or Panchayati Raj Act of the constitution.

The Pathalgarhi movement is often misinterpreted to snatch away its legal sanctity. The restrictions are not wholesome thereby movement is permitted but just that no outsider or administrative official is allowed to intervene in their matters. The Pathalgarhis are legitimate but taken a wrong turn through its movement. Constitutional expert Subhash C Kashyap, Former Secretary General of Lok Sabha exclaimed that “the demand for empowering Gram Sabha was well within the Constitution’s provisions. But if the Gram Sabha try to reject the Assembly of the Lok Sabha, it would defeat the purpose of the Constitution”. Further the attempt to control such protests and movements by police fails due to colonial system which still persists in society. The tribals claim that they are not unconstitutional as they merely inscribe the constitutional powers given to them under PESA.

Probable future

The Pathalgarhi or movements like this are still needed. The laws were formulated for improvement in the position of such tribes, however, no change has been observed in their lives, they are still suffering for their land and resources. Neither PESA is rightly implemented nor any Gram Sabha have performed anything major to protect their traditions. Constant failures on part of authorities force them for such protests in order to get their legitimate demands fulfilled and claim their constitutional rights. There is no doubt that it is legitimate but the government must negotiate and deal tactfully in order to resolve the issue.

Conclusion

The governor, custodian of rights should make decisions in consultation with Tribes Advisory Council. However, states like Jharkhand lacks such councils despite having huge tribal population. The PESA Act aims for tribal governance however, rules and regulations have not been formulated. Since, no act survives without rules, therefore, the act lacks implementation. Not only act but Supreme Court judgements have constantly been ignored by the state. Samatha judgement[9] of 1997 perceived mining rights to tribals and further in Niyamgiri case of 2013[10]. However, mining still continues despite such judgements. Therefore, there lies a need to cater such needs and take measures in right time.

[1] https://www.deccanherald.com/national/east-and-northeast/pathalgarhi-supporters-kill-7-in-j-khand-797274.html.

[2] https://indianexpress.com/article/india/pathalgarhi-supporters-killed-7-villagers-in-jharkhand-police-6229875/.

[3] https://www.thehindu.com/news/national/pathalgarhi-supporters-kill-7-in-jharkhand/article30627411.ece.

[4] https://www.indiatoday.in/india/story/five-women-gangraped-in-jharkhand-1266764-2018-06-22.

[5] https://www.business-standard.com/article/pti-stories/pathalgarhi-supporters-kill-7-villagers-in-jharkhand-police-120012200645_1.html.

[6] https://theprint.in/theprint-essential/what-was-pathalgadi-movement-and-why-hemant-soren-govt-withdrew-cases-related-to-it/342680/.

[7] https://www.livemint.com/opinion/columns/opinion-the-anatomy-of-a-tribal-uprising-in-jharkhand-1562777976997.html.

[8] https://www.thehindu.com/news/national/other-states/the-pathalgadi-rebellion/article23530998.ece.

[9] Samatha v State of Andhra Pradesh, (1997) 8 Supreme Court Cases 191.

[10] Orrisa Mining Corporation ltd. v. Ministry of Environment and Forests, (2013) 6 SCC 476.

Author Details: Naina Agarwal (Rajiv Gandhi National University of Law, Patiala)

The views of the author are personal only. (if any)

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