5. TRIBAL LAW AND JUSTICE

India has a substantial tribal population. According to the 1961 census the population of the scheduled tribes (as these are constitutionally designated) was 30 million; the 1971 census places the population figure at 41 million.

It is beyond the scope of this paper to attempt, even in bare outline, the evolution of tribal policies during the colonial regime or in independent India. It should suffice here to mention that there are hardly any tribal groups which have not been exposed to contact and penetration of non-tribal people. The Constitution seeks to safeguard the cultural unity and identity of tribal groups through provisions in fundamental rights, autonomous statehood or self-governance arrangements and institutions and a whole variety of limitations on the nefarious activities of the non-tribals, especially moneylenders (Hidayatullah, 1979). At the same time, the Indian State has undertaken a wide range of tribal development and welfare programmes including land and agrarian reforms. It has consistently resorted to strategies (constitutionally sanctioned) of reservations in education, employment and legislation and allied aspects of compensatory (or reverse) discrimination and other measures, designed to eliminate exploitation of ST population.

The overall results are difficult to assess. In most situations it would appear, the ST populations remain subject to exploitation and underprivilege, despite a plethora of ameliorative measures (see e.g. Patel, 1974); in other situations we find autonomy and maintenance of cultural heritage (as among the Santals; see Somers, 1977). The situation is so infinitely varied across ST communities, that it is rash to generalize concerning the tribal situation in India; nor does the state of art justify much scientific assessment of the overall situation (ICSSR, 1974).

The tribal communities are not above the state law. But for all practical purposes they are governed by complex regimes of customary law, administered by community-dispute institutions. There is naturally a wide variation in the regimes and institutions of people's law, study of which continues to remain a pressing priority on the agenda of legal anthropology in India (Das, 1974, 2: 383). The normative and institutional regimes of people's law vary according to the stage of social and economic development. Nomadic food-gathering tribes (e.g. Chenchus of Andhra Pradesh and Andaman Islanders) have simple societies, with rudimentary division of labour, with no established authority for enforcement of norms. Elaborate and complex moral norms exist, some may even be called distinctively legal (e.g. the strong sense of individual property) and disputes recurrently arise (especially in relation to sexual morality and property). Yet in these societies there are no recognizable dispute institutions. Community disapproval of violations of well-established norms provides the most effective sanctions. This is explained by the fact that the “fluidity of social units permits the easy separation of those who cannot agree” and also by the unusual situation posed by the fact that “the rewards of a wilful and successful flouting of the accepted standards of behaviour are not great in a society where no one can materially benefit by infringing another man's rights” (Fürer-Haimendorf, 1967: 32).

When we move from food-gathering groups to tribes which practice shifting cultivation, we come across the fact of “greater permanency of the local groups” and correspondingly “greater need for social controls” over activities of those who may threaten the order of the group (id.: 38). Fürer-Haimendorf, relying on his study of the Reddis of Andhra Pradesh (1945a), shows that the emergence of dispute institutions and mediatory roles is related to common ownership of land, with rights of cultivation given to the person or group actually clearing the forest and tilling the land for a period.

Both these types of tribal groups, the food-gatherers and cultivators, share a basic egalitarianism. Theirs is primarily a “society of equals” not only “in resources”. Only “one standard of conduct is expected of them all, and there is nothing to favour the crystallization of conflicting moral attitudes.” Enforcement of conformity is not very problematic. But in societies “accepting or even favouring differentials in power and wealth such enforcement is a relatively “less simple matter”, (id.: 55)

This is shown by the situation of Apa Tanis on Indo-Tibetan borderlands. The Apa Tanis are settled agriculturalists who have developed “highly efficient system of rice cultivation on permanent irrigated fields.” The Apa Tanis recognize private property in land; and have a rigid stratification, with immutable barriers between the nobleman (wealthy people) and commoners. Their dispute institutions are not ad hoc bodies but have a formal composition. The councils comprise representatives of each clan of the village. There is a clear distinction between “public” and “private” wrongs in Apa Tani jurisprudence. Theft is considered to be a wrong against society, necessitating public trial and punishment, whereas for private disputes self-help (avemong) is permitted.

In his study of Konyak Nagas, Furer-Haimendorf finds two types of Naga villages; the “democratic” and “chiefly” villages (id.: 84–104). There is a clear recognition in both types of villages of “authorities empowered to exert control and impose sanctions.” In “democratic” villages, village councils, comprising hereditary or elected heads of families settle disputes in a distinctively judicial capacity. Most breaches of customary law are punished by fines, although banishment is often awarded as a punishment (in cases, for example, of repeated course of thefts). There is scope for self-help, particularly in cases where a person is a victim of deliberate physical injury. The kinsmen of the victim are entitled to avenge; but even so, village councillors often intervene in “quarrels which have not yet led to violence.” The Konyak village councils also enforce many taboos as “necessary precautions against many magical dangers”. The councillors aim at harmony, which often means that the powerful clans may obtain outcomes they prefer against the relatively weak adversary.

But this bias towards the strong clans is not so thoroughgoing in “democratic” villages as it is in the “chiefly” villages. There exists a “fundamental difference in the conduct expected from the commoners and those appropriate to members of a chiefly clan.” For example, monogamy is “mandatory” for the commoners, but the members of chiefly clans are permitted to have many wives.

The situation of Raj Gonds, who are settled plough cultivators over the centre of peninsular India which is much larger than the British Isles, is strikingly different. One reason is that the Gonds “widely dispersed in space” are conscious of a “unity inherent in a social framework which allocates to every Gond a precise place in society” (Fürer-Haimendorf, 1967: 177).

Social control is exercised among the Gonds through village-level panchas (groups of five men), drawn mainly from the influential and important circles of the village. The panch may meet on its own to prevent the consequences of an action that is regarded as “polluting,” or it may meet to settle a specific dispute brought before it by the parties. The most interesting feature of the panch meetings, which are relatively informal and open to the public, is that:

“every meeting... tends to elucidate, reiterate and interpret the unwritten law of the tribe, and there are instances when the assembled men spend more time on discussing the principles involved than on investigating the rights and wrongs of the specific disputes to be settled” (id.: 122).

Of course, the panchas try to arrive at a solution of disputes which is acceptable to both parties but “Gonds consider it necessary to elucidate what tribal custom prescribes, if the panch is to strike a balance between the conflicting claims of two litigants” (id.: 122; see also for the Khasi system of criminal justice, Deb et ai, 1970: 206).

In a recent study (1979), Fürer-Haimendorf has elaborated further on the Gond concept of justice and related social values. In a particularly important discussion of sanctions, he indentifies three forms of excommunication, the most severe being tapu, imposed on those “who have lost their normal ritual status by such a polluting act as the sharing of a meal or having sexual intercourse with a non-Gond of a low status.” The second degree of excommunication is a form of outcasting; and the third, the least severe, amounts merely to exclusion from worship at ancestral shrines. In the last two forms, no purification ceremonies are required but the first form condemns the excommunicant to a ritually polluting status.

Fürer-Haimendorf warns against regarding excommunication as a mere punishment against an offence. Rather, it is “an act of self defence on the part of society”. In other words, excommunication does not take the form of physical banishment as in some other tribal societies; “Gonds place only social distance between tribal society and those who will not abide by its laws.” He suggests a “deep conceptual difference” between this kind of sanctioning process and those which entail infliction of physical pain or territorial ouster or exile. Excommunication represents a “non-violent desinteressement in those who flaunt society's rules” (id.: 167).

There are many interesting and distinctive features of Gond conceptions of justice. First, as noted, unlike Nagas, the Gond “recognizes... the existence of social and moral order extending over the whole of Gond society and in no way limited by geo-graphical boundaries.” Second, while a limited amount of self-help is permitted, there is among the Gonds a general disapproval of “retaliation as a means of obtaining justice.” Among the Gonds there is “no room for institutionalized reprisal of the type current among the tribes of Arunachal Pradesh.” Third, the importance of enunciation and maintenance of customary norms is often balanced with the need for restoring “the disturbed social harmony.” Often, the panchas endeavour to promote a settlement which may give to parties less than what might be due to them on a strict standard of customary law. Fourth, a “characteristic feature of justice administered by Gond panchayats is the absence of any provision for the award of compensation for injuries suffered;” compensation is awarded only for the actual expenditure incurred. Fines, when levied, usually accrue to panchas and not to the victorious party. Fifth, discussion on “general rules applicable and hypothetical cases involving similar legal problems” occurs frequently in Gond panchayat sessions. Thus, “the law as recognized by tradition and public opinion is periodically restated and reformulated, and adjustments necessitated by changed conditions can be ventilated and gradually evolved.” (id.: 169–171) Sixth, the principles of Gond justice allow no joint responsibility of kinsmen as prevails amongst most of the tribal societies of north-east India, where the misdeeds of one man may be avenged by an assault on any of his close agnatic kinsmen”. There is no custom of blood feud, common amongst the Nagas and Nishis. The Gond “is... expected to break off all social contact with even the closest of kinsmen, not excluding a full brother, who has fallen in a state of pollution” (id.: 174). Finally, the assumption amongst Gonds is that the village council will always administer justice “according to the dictates of prudence and customary law, and that force will never be allowed to prevail”. No doubt, this is an ideal picture. Nevertheless, “in theory, public opinion does not allow individuals to fight out their quarrels by themselves, and any major outbreak of violence normally results in proceedings before a competent punch” (id.: 177).

The Santals of Bihar (notable for their “Hoon” rebellion in 1885 against fraudulent moneylenders, rapacious tax collectors, including landlords, and cruel and corrupt police) have been, during the course of long history, an “encapsulated” tribe, which has been able to maintain, despite intensive contact, its own cultural identity and heritage. The headman, mostly hereditary, performs a key leadership role among the Santals at the village level. The role of the headman is indeed very complex as he is not just the key adjudicator of disputes but he is also an administrator, among others, of the village and also an articulating link between this community self-regulation and governmental development programme: he in fact acts also as a village pradhan (bureaucratic agent) (Somers, 1977). But in terms of our present concerns the headman's role specifically requires (i) protection of collective rights, (ii) protection of individual rights, (iii) ensuring performance of collective duties, (iv) containing deviance and ensuring commitment to Santal community and culture (id.: 193). The headman works through village leaders and in collaboration with his counterparts in other villages. The “Santal headman is a recognized catalyst in the process of attaining consensus”. He represents the “customs and expectations of the ancestors whose rules of behaviour are considered correct”; the customs of ancestors are considered “guiding principles”. Headmen have often resigned their position when they seem to the “administrative elders” or to the people unable to perform this role. In many ways Santal culture happily combines egalitarianism and participatory decision-making with deference for age and seniority, and for the catalytic role of the headman.

This cursory overview presents a profile of the rich variety of regimes and institutions of indigenous customary law. The nature and function of dispute institutions are related to the variables of social organization, agrarian enterprise, cultural values and even cosmogony. Anthropological studies do not, by and large, analyse the nature and scope of interaction between indigenous tribal institutions and those of the state law. We have a few titbits of information concerning interaction between the two legal systems. Introduction of cash fines represents not only the monetization of tribal economy, but also the impact of SLS “stock-in-trade” restitutive sanction. The prevention of the practice of head-hunting among Nagas, and the actual disuse of this sanction, is a direct consequence of the imposition of state law as an initiator of change in the indigenous law. The reference to SLS by the indigenous systems in most situations of murder is a fair measure of acceptance of the hegemony of the SLS in certain areas over NSLS. But as the Santal situation illustrates the SLS has a negative face for most tribals, perhaps this is not a problem of differing cultural modes but rather one of the manifest corruption and cruelty of its non-tribal agents – the police, prosecutors and in some cases even the courts. (Also see Baxi, 1976b, 1979c on the Rangpur experience; Elwin 1943).

We also learn from these studies about the differences and similarities in conceptions of justice and its relation to power. The moral and jural double standards of Konyak Nagas are perhaps atypical; but the SLS in its enforcement of law and administration of justice is not much removed from the stratified justice of Konyak Nagas. In any case, the concern for harmony, favouring the resourceful over the underprivileged through a careful elaboration of the law found amongst the Raj Gonds, offers almost a paradigmatic description of the Indian state legal system. It is doubtful if there exists for the entire tribal population of India any distinctive conception of justice; there seem to exist however, distinctive types of conceptions of justice among them (Fürer-Haimendorf, 1967). These need to be examined in relation to conceptions of justice manifest in the village legal systems and these manifest in the SLS.

The impact of the constitutional solicitude for the scheduled tribes over the internal political and judicial processes of the tribal systems also remains to be examined. Anthropological studies have reiterated that the “clear and expectable” direction of tribal change is towards acceptance of jati characteristics (Mandelbaum, 1966: 593). To what extent do the constitutional rights and privileges support and arrest this trend? In other words, how do tribal groups make conscious choices to identify themselves as members of jati rather than tribe, and what awareness of constitutional benefits goes into the calculus of their choice? There have been notable examples where tribal groups identified themselves with a jati only to revert to the original tribal identification (e.g. the Bhumij of Bengal studied by Surajit Sinha, 1959: 12–30). To what extent, if at all, do the jati models of law, adjudication and justice influence such exercises in identity realignment?

The foregoing indications and questions underscore the need for a sustained systematic examination of the relation between people's law and state law, and the underlying value and ideology considerations. No genuine understanding of the social change dynamics through legal pluralism is possible without such efforts.