Every three years, the Oraon tribal people of Masmano, a village located about 40 km from Ranchi in Jharkhand, gather at their Sarna sthal (a Sal grove where villagers worship sarna or nature). One villager — man, woman, or child — is chosen at random and blindfolded. A rice sieve is tied to their arm, with a stick protruding outward. The worship begins. The stick leads the blindfolded villager through Masmano. The villager finally stops in front of one house. The head of that house, a man, becomes the pahan or the principal priest of the village.
This is how pahans have been chosen at most Oraon villages in Jharkhand for as long as anyone can remember. The village picks people to occupy the positions of mahto, panbhara, kotwar, and munda in a similar manner. These positions together comprise the akhada, the village’s highest decision-making body. It is empowered by the Panchayats (Extension to Scheduled Areas) Act or PESA Act, 1996, to use the “customary mode of dispute resolution” for disputes related to land, family, and marriage, among others.
“This will be under threat if the [Narendra] Modi government brings in a Uniform Civil Code (UCC),” explains Rajnish Oraon of the Adivasi Samanway Samiti, a civil society group working for tribal rights. At dusk, he is addressing the villagers of Masmano, who have returned from their farms and have gathered under a mango tree.
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While Prime Minister Narendra Modi is pushing for a UCC and the 22nd Law Commission has sought views from public and religious organisations on the subject, Jharkhand is at the forefront of opposing it. Tribal groups have asked the Governor to intervene on the issue. Some of them have been travelling from village to village gathering support for their cause.
A way of life
Tribal villages fear that significant parts of their way of life would be undone if a UCC is put in place. “We have had a system that has worked not unlike our Constitution,” says Bandhan Tigga, a Sarna Dharm Guru and vocal advocate for a Sarna code. (A separate Sarna code in the Census is the key to a distinct identity for tribal communities as without it, they are classified as Hindus or Muslims or Christians.) “At the village level, the five post-holders are the deciding authority in matters of disputes. The next court of appeal comprises the respective padhas.” A padha is a unit representing a group of villages. A group of seven villages would have a seven-padha committee as the next court of appeal. Padhas can be of 7, 12, or 21 villages each. Beyond this is the 40-padha committee, which is the largest unit of Oraon villages in an area. Similar systems exist among the 32 tribal communities of Jharkhand.
Shyama Munda, 28, is a ward member of the Navatoli village in Bero block outside Ranchi. Her husband, Govinda Munda, runs a grocery store under the biggest peepul tree in the village. “I got married when I was 19. Govinda’s parents had died. We lived with his brother and sister-in-law, who put us through hell. In 2018, we decided to separate from them, but half of Govinda’s father’s land belonged to him. I called the Gram Sabha and claimed the land as my own since I had married into the Munda family. The decision was in our favour,” she says.
She tills the land and operates all the farm machinery. However, Shyama cannot bequeath this land to her daughters because on paper it would still belong to the Mundas. Once Shyama and Govinda die, the land will go back to the sons of Govinda’s brother. “It would have been nice if I could have claimed my father’s property,” she says. But if she were to even broach the subject of a UCC in a village meeting, there would be pandemonium, she says.
Neelmani Oraon, 30, from Masmano says women have not had the right to claim their father’s property. But this is “balanced” by the fact that they can stake claim to their husband’s property. “If we start claiming our father’s property, our husbands’ sisters will also claim what is rightfully ours,” she argues.
Rajnish says, “Most tribes in Jharkhand have a patrilineal line of succession. It’s the case with our tribe too. Do you want to allow daughters to claim their father’s land? What will happen if non-tribal people and people of other religions trap our women to grab land?” He fears that once the power of their customary practices is lost, the Oraons will be considered Hindus.
Meanwhile, tribal welfare organisations linked to the Rashtriya Swayamsevak Sangh have found themselves in a tricky spot. Outfits like the Vanvasi Kalyan Kendra, which have been holding elaborate drives across Jharkhand to convince tribal people to mark their religion as Hindus, are doubtful about the position they want to take on the UCC. Sukhi Oraon, the VKK chief in Jharkhand, says, “UCC is a good thing, but tribal culture cannot be touched.”
The tribal groups of Jharkhand believe that civil courts are too cumbersome and inaccessible. “If I had gone to court, I would probably still not have possession of the land that I fought for. The dispute was settled with the decision of the Gram Sabha (which followed from the Munda customary practices),” says Shyama.
Tradition and law
Special legislation such as the PESA Act, 1996; the Chota Nagpur Tenancy Act, 1908; and the Santhal Parganas Tenancy Act, 1876, recognise such customary practices in Jharkhand, which are protected under the Fifth Schedule of the Constitution. There also judicial precedents which recognise customary practices and authorise lower courts to make decisions on their basis.
Pooja (name changed to protect privacy), an Oraon who had married as per her community’s customary practices, had filed for divorce in the family court in 2021 on grounds of adultery. The court said that since Oraon customary practices are not codified, it could not have jurisdiction over it. However, when she approached the Jharkhand High Court, a Division Bench not only recognised the padha system of dispute resolution, but also directed the family court to decide the divorce matter as per the community’s customary practices.
Advocate R. Katyayan, who represented Pooja, says, “Once we were able to prove that the customary practices of separation were performed as per Oraon customary practices, we could secure the divorce.” Katyayan is now known as ‘Khatiyan (record of registry)‘ because of the number of land dispute cases that he has taken up for Scheduled Tribes, where the question of customary practices keeps propping up.
At his chamber in the Bar Association building in Ranchi, Katyayan says, “[If a UCC is put in place], there would be significant doubt cast on many precedent-setting judgments that have recognised customary practices. And more broadly, all law is based on some custom. What will happen to that principle? There are liberal provisions of land transfer in legislation such as the Chhota Nagpur Tenancy Act and Santhal Parganas Act, which are based on customary practices. Land can be transferred to any Scheduled Tribe person, regardless of gender, clan or tribe. That is why it is important to ask what the specifics and scope of a UCC would be.”
Matters of inheritance
There have been voices of concern in other regions as well. The sharpest protests against a UCC in the north-east emerged from Nagaland, Meghalaya, and Mizoram. Many tribal bodies have raised what they claim is the unconstitutionality of a UCC in the presence of protections enshrined in Articles 371A (special provision with respect to Nagaland) and 371G (special provision with respect to Mizoram) of the Constitution of India. A UCC could also come in conflict with the Sixth Schedule of the Constitution (which facilitates the establishment of autonomous district councils in Assam, Meghalaya, Mizoram, and Tripura), they say.
In April 2022, the Supreme Court agreed with the observation of the Gauhati High Court that, according to Mizo customary law, inheritance of property “depends upon the question as to whether a person supported the deceased in his old age or not”.
This observation was similar to that of a Mizoram district council court in February 2006. That case pertained to P.S. Dahrawka, his wife Kaithuami, and their seven daughters and son. When Dahrawka died in 1978, his youngest daughter, Thansangi Huha, who was divorced, went to live with her mother. The couple’s only son, Thanhnuna, passed away in 1996. Their daughters, granddaughters, and Thanhnuna’s wife Ralliani and their daughters Laldinpuii and Lalmuanpuii all went to court following a property dispute. Citing sections of Mizo customary law, the district council court said there was ample scope for distribution of the property in a fair and reasonable manner although the son was entitled to inherit the father’s property according to the same law.
It also said that inheritance depends on the responsibilities carried out by the legal heir while noting that daughters other than Thansangi were not entitled to any share of the property since they were married. Thansangi’s share was assured because she had “looked after her mother till her death”, the court said, and considered Dahrawka’s granddaughter Lalmuanpuii eligible for inheritance because she was unmarried.
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Later, a Supreme Court Bench observed that if a Mizo natural heir does not support their parents, that person would not be entitled to inheritance. “It has further been held that even if there is a natural heir, a person who supports the person until his death could inherit the properties of that person,” the Bench said.
“Social practices vary from community to community, but the best practices and aspects of customary laws can be accommodated when a common code is prepared without affecting traditional systems,” says Lallungmuana, who teaches sociology at Aizawl’s Pachhunga University College.
The Bodo community of Assam has similar traditional norms of inheritance. According to a 2017 paper published by Bodoland University’s Oinam Ranjit Singh in the IOSR Journal of Humanities and Social Science, a Bodo inheritor is duty-bound to perform the last rites of the parents, and in case of the death of one of them, take care of the surviving parent and other survivors. The inheritor is also supposed to pay off the debts of the deceased parents.
But the property of the deceased “passes to the next legitimate heir who can successfully perform the duty of the inheritor,” if the inheritor fails to discharge duties to the satisfaction of society or fails to perform the duty prescribed by customs and tradition.
Pai Dawe, the former president of the Nyishi Indigenous Faith and Cultural Society, says the community-based systems of settling disputes in Arunachal Pradesh are “more democratic” than those of modern-day courts. He cites the Kebang system of the Adi community, which mostly inhabits the central part of Arunachal Pradesh, as an example. A self-governing institution, the Kebang is a village council comprising elderly members considered experts in traditional knowledge. It is recognised as a “village authority” under the Assam Frontier (Administration of Justice) Regulation, 1945, and was lauded by former Chief Justice of India, Altamas Kabir, for covering the judicial needs of tribal areas.
“Unlike the formal judicial system, where one party is always the loser, everyone is a winner in the Kebang system. The parties in dispute organise a community feast and perform rituals so that their animosity does not continue after settlement. The village headman is not necessarily a member of the jury in this system. Senior experts can be hired or invited from neighbouring villages to settle critical cases such as murder, for the sake of neutrality,” Dawe says.
‘You cannot impose change’
In Nagaland, tribal organisations feel that “one code for one country” undermines the Constitution. However, as history teacher Adani Ngullie points out, patriarchal customary laws make it difficult for Naga women to inherit land although some parents in urban areas have started bequeathing a share of their property to their daughters.
In Meghalaya, it is the opposite: daughters inherit ancestral property from their parents.
Meghalaya is home to three major matrilineal communities — Garo, Khasi, and Jaintia. The Khasi customary law vests the right of inheritance on the khatduh, or youngest daughter. She also has to perform religious ceremonies, take care of her parents, and look after other family members who are unable to earn for themselves. But she is not the owner of the property and can sell it only after getting consent from her maternal uncle.
“We cannot let our traditional system be affected by a common code that is likely to be drafted on the basis of the practices of the majority patriarchal society,” says Pyniaid Sing Syiem, the chief executive member of the Khasi Hills Autonomous District Council.
While the Council has decided to reconstitute the select committee for examining the Khasi Inheritance of Property Bill, 2021, which envisages “equitable distribution” of parental property among siblings of the Khasi community, experts say communities must decide to change in their own time.
A section of Khasi men has also been campaigning for children to adopt the surname of their fathers. Among the matrilineal Khasis, lineage is traced through the mother.
In Jharkhand too, Dev Kumar Dhan, the Convener of the Adivasi Samanway Samiti, who had fought the last Assembly election from Mandar on a Bharatiya Janata Party ticket, says, “You cannot impose change on communities. They will change when they feel the need to. There is no way that the Adivasi people of Jharkhand are ready for something like this. We have a history of our leaders fighting for our land. Any imposition might lead to dire consequences.”
Social worker Dayamani Barla, who has for decades fought against dilutions of land laws that intend to alienate tribal communities from their land, says a UCC in any form would push the people to “an extreme corner.” Her organisation, the Adivasi Moolwasi Jameen Raksha Manch, is urging people to write to the 22nd Law Commission opposing the UCC. “We will fight the UCC tooth and nail,” she says.
