Image by 🇸🇮 Janko Ferlič



Updated: Nov 23, 2020

This talk was delivered as part of the 5th annual History for Peace conference, The Idea of the Indian Constitution in July 2019.

I’m really grateful for this chance to present today because it’s based on work that I’ve just started doing. A lot of it will seem unfinished because I’m still doing my detective work in the archives. One of the things that I’m trying to look at is why certain provisions got included in the Constitution, and why certain provisions got dropped. This is part of a larger project on the multiple imaginations of the Constitution. As Gautam Bhatia pointed out in the morning, there is an entire history of the freedom struggle that informed the Constitution. As Rohit De’s work shows us, people brought multiple questions to the courts, which then went on to interpret the Constitution in multiple ways. What we have now is a living text. My interest lies in the time of the Constitution being framed and how deeply people were interested in its final form. Different groups brought multiple petitions to the Constituent Assembly and even drafted different kinds of constitutions including the Hindu Mahasabha, MN Roy and the Socialists. There was also a Gandhian Constitution that the princely state of Aundh alone tried to implement. Babloo Loitongbam will, at some point, tell us about how the state of Manipur had its own constitution.

There was a lot of investment in the idea of the Constitution, something even Professor Rodrigues spoke about yesterday, about how the Round Table Conferences brought up some of these issues. Today I’m going to focus on the 5th Schedule. I would have liked to include the 6th Schedule also, but that won’t be possible due to lack of time and because the work is still ongoing.

I want to look at how Adivasi communities thought about the democratic process at that time, and how they have subsequently used the Constitution. The Constitution is something that is present in our everyday life—we see it in those statues of Ambedkar in his blue suit, holding the Constitution, in small villages across the country. Adivasi groups, for example, have their own interpretations of the Constitution that are increasingly being criminalized—I’ll come to that at the end of talk. I want to start by looking at the making of the 5th Schedule.

The 5th and the 6th Schedules both trace their history in an administrative sense to the Scheduled Districts Act, 1874. According to that Act,certain areas were to remain outside the purview of the government of that area, and the laws that applied to the rest of the province would not apply to those districts, with the provision that the Governor-General could make special laws for them. It is under the SDA that you have specific tenure acts like the Santhal Pargana Tenancy Act and the Chota Nagpur Tenancy Act, which contain a very specific tenure system, land rights system for Adivasi communities in what is now Jharkand. Similar tenure acts apply to other parts of the country.

The Government of India Act, 1935, also had a provision for excluded and partially excluded areas. The Constituent Assembly (CA) set up an advisory committee that would look at fundamental rights, minorities and excluded and partially excluded areas through Clause 20 of the Cabinet Mission Plan:

The Advisory Committee on the rights of citizens, minorities, and tribal and excluded areas should contain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of Fundamental Rights, the clauses for the protection of minorities, and a scheme for the administration of the tribal and excluded areas, and to advise whether these rights should be incorporated in the Provincial, Group, or Union constitution.

(‘Statement by the Cabinet Mission and the Viceroy, May 16, 1946’ in B. Shiva Rao, The Framing of India’s Constitution: Select Docs, vol. 1 [New Delhi: The Indian Institute of Public Administration, 1966], p. 216.)

I’ve emphasized some words because this was something that was later used to deny Adivasi aspirations by a sleight of hand, by the kind of politicking in the Constituent Assembly that we continue to see in the parliament and our politics today.

The phrase ‘full representation’ was brought to the attention of the Constituent Assembly by Jaipal Singh Munda. He argued that the original text had the phrase‘full representation’ while the version distributed to the members had‘due representation’. ‘Due representation’ really meant no representation of Adivasi interests in the Constituent Assembly. Two sub-committees were set up: one under the Chairmanship of Gopinath Bardoloi, which looked at the excluded and partially excluded areas of Assam; and the other under the chairmanship of Amritlal Thakkar, popularly known as Thakkar Bapa, which looked at the partially excluded areas in the rest of the country. Both the sub-committees got hundreds of representations from across the country. Government officials and some CA members talked about Adivasis needing special protection, about not being politically engaged; even Ambedkar, prior to the Constituent Assembly, said that Adivasis should not be given the right to vote because they were not politically capable. It is quite astounding that anyone could believe such a thing even when they were faced with the evidence of politically active Adivasi groups from across the country, demanding representation in the Advisory Committee. They thought that they should be part of the Constituent Assembly themselves, with some suggesting proportional representation and many asking for greater educational facilities.Many of the demands were submitted in the form of printed memoranda which, interestingly, everybody signed in English, and many of them emphasized the idea of democracy,and that the government should be looking to Adivasi communities to learn what democracy really was because it was these communities that were the most democratic in their everyday functioning. The following extract is one of the dozens of petitions demanding a separate state of Jharkhand:

India is marching towards democracy. We will be the future free citizens of India. India will be teaching democracy to her children. We are the most democratic people on earth. We have maintained the principles and ideals of democracy from the very beginning. What we require at present is protection from disrupting us into tribes and sub-tribes by the present Government. This tendency is solely meant to disrupt the democratic Adibasis. In order to keep our identity, our self-entity and for self-determination, we demand a separate province, constituting Chhotanagpur plateau and Santhal Parganas with areas adjacent to it with Adibasi population. By this we will be able to protect our culture, history, civilization and our very own existence for the service of India. We will be in the vanguard in the battlefield of India’s freedom.

Jai Jharkhand Province.

(Printed Memorandum from Adibasi Students Fellowship, Chotangapur and Santal Parganas, to the Sub-Committee on Ex & PE Areas, dated 2 May 1947.)

There were only seven Adivasis representing Bihar in the provincial legislature, and this was proportionately way below the actual number of Adivasis in the province. Even in the Constituent Assembly, there was very little physical representation compared to, for example, the representation afforded to the Schedule Castes. There were only six members in the Constituent Assembly from what later became the Scheduled Tribes—of them, except for Jaipal Singh, and Reverend JJ Nichols Roy the others didn’t really speak at all. One of the letters sent to the CA complained against Phul Ban Shah, a Jagirdar from Chhindwara, one of the 6 members,for buying a position in the Constituent Assembly:

He was born in Palace and passed his life as a Raja. Being Raja hardly knows the difficulties of poor aboriginals. C.P. is full of Gond Zamindars who treat aboriginals as untouchables being deaf and dumb. They have never cared to open schools or dispensaries for them or tried to ameliorate their pitiable condition. The member must be a man of outstanding merit, eminence and calibre. He cannot write even a letter in English or Hindi. He can be tested when he comes to Delhi [this is underlined]. The present moment is a moment of life and death for the aboriginals. His selection is waste of national money and dark future for aboriginals. Phulban Shah gave Rs. fifty thousand to other castes to become MLA and defeated poor able men. he has got tons of money—a part of which will go to the man who has selected him for Advisory Board. His main object is to claim retention of Zamindari. For this purpose a deputation of Zamindars of CP will be in Delhi shortly.

—Mandla, 20.2.47

The common idea that the Constituent Assembly was a great spacewhere multiple voices were represented, devoted to the future of the country, is perhaps not quite true. In fact, the only document that I have seen by Phul Ban Shah in the Constituent Assembly is a letter stating that his uncle, the Jagirdar of so-and-so province, should be consulted when the Advisory Committee visited Madhya Pradesh, then called the Central Provinces.

The two people who really mattered in the 5th Schedule were Jaipal Singh and Thakkar Bapa.

In a sense, the story of the 5th Schedule is a story of the clash between these two personalities. Thakkar Bapa, who turned 80 in 1949, was a Gandhian. He started as an engineer, became a member of the Servants of India Society and set up the Bhim Seva Mandal. In the debate about whether Adivasis should be given the right to vote, as a Gandhian and as somebody who was involved in the national struggle, Thakkar Bapa strongly argued for the idea that everybody should be given suffrage, that even the Adivasis can politically represent themselves. There has been a writing-out of the work of the Gandhians in the Adivasi movements, which is a pity because it is a rich history that should be recovered.

So on the one hand, you had Thakkar Bapa, who was going around the country preaching abstinence and temperance, and who spent all his life in the service of the downtrodden.On the other you had Jaipal Singh, former captain of the Indian Olympic Hockey Team, who refused to be downtrodden. Thakkar Bapa refused to travel by anything other than third class on the railway; Jaipal Singh refused to stay anywhere but the Imperial Hotel in Delhi. Jaipal Singh, in one his letters, talks about how he flew to and fro Calcutta on the same day, and about how wonderful it was to be able to fly. Jaipal Singh loved his Black Label whiskey, and was glad to stand people drinks. Some of the most interesting arguments in the Assembly on Prohibition, on the Right to Bear Arms, actually come from Jaipal Singh. Whereas Thakkar Bapa believed that temperance should be one of the provisions of the 5th Schedule. Unfortunately, given the composition of the Constituent Assembly, Thakkar Bapabeing the good Gandhian, was given a lot more weight than Jaipal Singh. Several racist exchanges occurred during the Constituent Assembly debates. In one of them, Bishwanath Das says:

Comparisons are odious, but no option is left. I would not compare my Friend Mr. Jaipal Singh with Shri Thakkar Bapa. It would be ridiculous for me, and for the matter of that for anyone, to be taking anyone, howsoever great he may be, as the sole representative of the hill tribes. A person from his residence in the second or third floor of the Hotel Imperial, ill compares himself with a person like Thakkar Bapa.

To which Jaipal Singh responds:

I am very sorry to disappoint him that, in supporting the Fifth Schedule, I did not dress in my bows and arrows, the loin cloth, feathers, earrings, my drum and my flute. I have disappointed him I know. But I shall be very glad to educate the organization, of which he is the prime mover, next cold weather.

Jaipal Singh had been the Finance Minister in the Bikaner Government. After he graduated from Oxford, when he was the captain of the Indian Olympic team, his first job had been in Calcutta with Burmah Shell. He was married to W.C.Bonnerjee’s daughter; he taught at the Achimota College in the Gold Coast; he had not only travelled the world but also across different parts of India, and was associated with some top British officials. From 1938 onwards, he was also a leader of the Adivasi Mahasabha, and people walked hundreds of kilometres to attend his speeches. The symbol of the Mahasabha was a cock, which everyone could relate to, given the popularity of cock-fights. Jaipal Singh combined these multiple worlds, and that was something our earnest Gandhians in the Constituent Assembly really could not appreciate or fathom.

During the course of the Constituent Assembly, Jaipal Singh had drawn up a long list of names for who should be interviewed in Jharkhand. Thakkar Bapa complained to the secretariat about this list—clearly, an attempt to stifle the kind of representation that Jaipal Singh was trying to bring in. Eventually he relied on Clause 20 of the Cabinet Mission Plan (referred to above) to argue that Jharkhand, which was a big demand at this time, should not be allowed because Jharkhand was not an administrative matter. The demand for self-representation, as far as Thakkar Bapa was concerned, was a political matter and not an administrative one like provisions regarding land. Thakkar Bapa also got B.N. Rau, Rajendra Prasad and others on board to agree with this interpretation.

The provisions that the Advisory Committee came up with were severely watered down, and I’m afraid Ambedkar does not play such a great role in the Constituent Assembly as far as the 5th Schedule goes. The weakened and emasculated Tribes’ Advisory Council is an example. It was reduced to something that the Governor had to consult rather than something that could actually take an initiative.

Many of the points raised by Jaipal Singh in the Constituent Assembly, which were then ignored, are now coming back to haunt the Adivasi communities.Just to give you one example, this is a film some of you might have heard about:

There was a case filed in the Delhi High Court, Prem Mardi vs Union of India, in 2015(?), where the Santhal petitioner asked for a ban on this film,since it encouraged violence against the Adivasis and violated the SC-ST Prevention of Atrocities Act. Justice Endlaw said that there was no such thing as an ‘Adivasi’ in the Constitution—only Schedule Tribes and jan jati. And that the film was fantasy and therefore not offensive. At the time of the Constituent Assembly debates, Jaipal Singh had argued that the term ‘Adivasi’ be used—it wasn’t in the end, and instead, Scheduled Tribes, and in Hindi Janjati, was used. Similar points that Singh raised were rejected or watered down by the rest, and ultimately allowed for the Constitution to be read in this perfectly arbitrary fashion.

A case in point is the Pathalgarhi movement, which is going on right now in Jharkhand— they have been distributing copies of the Constitution to the people and many have been arrested in connection with this movement. The administration is so upset by the fact that people now have access to the Constitution that they have, in fact, jailed all their leaders, and distributed their own copies of the Constitution. The movement also helps erect plaques outside villages with the provisions of the Constitution, talking in particular about Provision 13(3), which states that custom will be the law of the region—which the government blatantly ignores. They also debate how various articles like 13, 19 (5), etc. should be read. This movement has spread to parts of Chhattisgarh and Odhisa. It’s interesting that Adivasis are engaging with the Constitution in a way that is making the government terrified of these popular interpretations.

This is a film made by K.P. Sasi, about how Adivasi communities, through movements like Pathalgarhi and others, are implementing the Constitution in their everyday lives.

There is an ongoing case in the Supreme Court on the Forest Rights Act. On the hand, the foresters have gone to court saying that their land is being given away. And on the other, there are hundreds of Adivasi groups protecting their land. Of all the groups that have suffered from the Constitution, these adivasi groups have suffered the most, and are continuing to fight the most. They fight through the Constitution, they resist on the ground, and they also struggled for their vision during the making of the Constituent Assembly.It is something that invests our whole history, our engagement with ourselves as people, our Constitution and our natural surroundings.All these are played out through their various struggles.

Question and Answer Session

Uma. On the one hand, we talk about the land and rights of the Adivasis being taken away. On the other,we also talk about the very poor representation of Adivasis in higher educational institutions. Wh