Indigeneity and Legal Pluralism in India: Claims, Histories, Meanings, Pooja Parmar

Parmar's ethnography examines the protracted dispute over a Coca-Cola plant on the lands of the indigenous Adivasis in India. The Adivasis played a prominent role in initiating and sustaining protests against Coca-Cola.

The legal issues identified by all the lawyers I spoke with relate to the conflicting positions of Coca-Cola and Perumatty Panchayat over the use of groundwater for the company's operations, and involve the question of whether and to what extent the decision of the Kerala High Court undermines a panchayat's ability to make decisions at the local level. For most the central legal issue that needs to be decided by the Supreme Court is the role and powers of a panchayat in the decentralized system of governance envisaged under Part IX of the Constitution of India, in general, and the Kerala Panchayat Raj Act, in particular. Related questions, emphasized to varying degrees by each of them, are those of determination of rights over groundwater and environmental pollution. Resolution of these issues and questions calls for a definitive interpretation of constitutional guarantees, property rights, and the various statutes invoked by all parties to the litigation. The energies of the lawyers are therefore focused on presenting the best arguments based on legal enactments and precedents in support of the respective positions of their clients, that is the Perumatty Grama Panchayat, Local Self-Governance Department, Kerala Pollution Control Board, state of Kerala, NGOs, indi­vidually named activists, and a farmers' organization.

Raising complex questions of dispossession, displacement, and legal and social processes through which Adivasis have been impoverished, when [...] the law does not often recognize these as violations, cannot be sound litigation strategy. Even though related, the “social” and the “legal” thus remain exter­nal to each other. The “social” presents the dispute but does not determine the “questions of law,” which are determined by and in the language of the law that requires the translation of the specific into abstract. The legal viola­tions are named and framed by the law. Thus framed, the questions are also then determined by applying the law. There is no room here for the complex issues invoked by the expression “tribal rights.” Issues and questions that a court cannot recognize are considered best left out. [...]

In Kerala, as in other parts of the country, the most important issue that Adivasis continue to face is that of dispossession and displacement. And yet the lawyer, who acknowledged during our conversation that the Adivasis in Plachimada are concerned over the protection of their traditional sources of water, thinks it prudent to not raise such questions of “tribal rights” in the Supreme Court. Precedents like State of Kerala v. PUCL show that reliance on tribal rights to land or arguments based on Adivasi connections to their traditional lands stand no chance when weighed against statutes. The state law does not recognize any tribal right to maintain connections to traditional lands in perpetuity. In a situation where those lands are required for national progress and development, such tribal rights do not, as the lawyer pointed out, “cut much ice.”

The violation experienced by Adivasis in places like Plachimada, when recognized, creates issues that require questions of law and justice to be framed differently than they currently are. The “tribal question” cannot be successfully translated into familiar “questions of law” for courts. The kind of translation that the Adivasi accounts call for - the practice of “hearing-to- respond,” the recognition of the limits of the existing legal language and processes, and the courage to commit to a different vision of the future - is not common. Unfamiliar and messy questions that are inseparable from long and complicated histories of social, economic, and political exclusion offer neither the comfort nor the stability of the familiar categories and narratives of law. For the lawyers, greater possibility of success therefore, lies in translating claims into a language the court can recognize and respond to, that is, in formulating arguments that can be grounded in existing statutes and legal categories of harm, not in the realm of tribal rights. This is especially so when these rights seem to be diverging from the currently imagined future of the nation.

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