Religious Freedom and Tribal Rights in India
The Preamble of India declares India to be a sovereign, socialist, secular and democratic Republic to secure justice, liberty and equality to all citizens and promote fraternity to maintain the unity and integrity of the nation. The essence of the Preamble is reflected in India’s multitude of diverse cultures, including that within the country’s tribal population. Numerically, it may be a small minority, but the tribal population represents an enormous diversity of groups that vary among themselves in the areas of language and linguistic traits, ecological settings in which they live, physical features, size of the population, the extent of acculturation, dominant modes of making a livelihood, level of development and social stratification.
- Defining the Religious Identity of the Scheduled Tribes
- The Struggle of the Scheduled Tribe in India with Christianity
The 705 Scheduled Tribes constitute 8.6% of India’s population, according to the 2011 Census of India[i].
In the Indian context, though, the term “tribe” has never been defined satisfactorily. Tribals were considered to be a “backward class,” and, until 1919, they were termed as being a “depressed class.” The Census accorded a different nomenclature for tribals. They were referred to as “primitive tribes” in the 1931 Census, as “tribes” in the 1941 Census, and as “Scheduled Tribes” in the 1951 Census. The Constitution also refers to the tribal communities as “Schedule Tribes.” In Hindi, the synonyms used for the “Scheduled Tribes” are “Anusuchit Janjati,” “Adivasi,” “Vanavasi,” and “Adimjati.”
With the Presidential Order of 1950, Article 366(25) of the Constitution defined Scheduled Tribes as “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this constitution.” Article 342 prescribes a procedure to be followed to specify Scheduled Tribes. The criteria followed for the specification of a community as a Scheduled Tribe include indications of primitive traits, distinctive culture, geographical isolation, shyness of contact with the outside community at large and backwardness. This criterion is not spelt out in the Constitution but has become well-established.[ii]
The list of Scheduled Tribes is specific to a state/Union Territory. A community declared as a Scheduled Tribe in a state may not be declared as one in another state. In Govt. of A.P vs. Smt. Dasari Subbayamma & Anr,[iii] it was held by the court that “belonging to a tribe is a matter of birth; not of choice — nor a matter of law.”
Being aware of the discrimination that the Scheduled Tribes have been facing since before the Independence, the Constitutional provides for several safeguards for their advancement and development.
The scope of the paper is to highlight the continuing hostility that the Scheduled tribes in India face, especially on account of their Christian faith which reflects an interplay between religion and tribal identity.
Defining the Religious Identity of the Scheduled Tribes
Religious freedom is guaranteed to every citizen of India and it does not discount the right and free will of the Scheduled Tribes in India to practise, profess and propagate any religion as guaranteed under Article 25(1) of the Constitution. The Scheduled-Tribe status exists irrespective of religious identity, as substantiated by the Census definition of Scheduled Tribes as follows:
“(The) 1951- Scheduled Tribes included the tribes or tribal communities or parts of or groups within tribes or tribal communities specified in the Constitution (Scheduled Tribes) Order, 1950, and the Constitution (Scheduled Tribes) (Part C States) Order of 1951. The Scheduled Tribes belong to various religions. The fact that the Scheduled Tribes may belong to any religion has been stressed time and again in the Census definitions of the years 1971, 1981, 1991 and 2001.”
The Supreme Court of India in Commissioner, Hindu Religious Endowments Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,[iv] defined religion in the following words:
“Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well-known religions in India, like Buddhism and Jainism, which do not believe in God or in any intelligent first cause. A religion undoubtedly has its basis in a system of belief or doctrinal which are regarded by those who profess that religion as conducive to their spiritual well-being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observance ceremonies and modes of worship which are regarded as integral parts of religion and these forms and observances might extend even to matters of food and dress.”
The Scheduled Tribes do not necessarily identify with any particular form of organised religion in the country. Their religious concepts, terminologies and practices are varied among the hundreds of tribes across the country. Religious concepts are intricately entwined with ideas about nature and interaction with local ecological systems as well as spiritual rituals and customs. One of the tribal groups, Santhal, has their own way of life and maintaining all privileges in matters connected with marriage and succession as per their customary tribal faith.
Speaking about the advent of Christianity among the Scheduled Tribes in India, it dates back to British Rule, when Christian missionaries began reaching out to the Khasi people of Assam in 1813, the Oraon people of Chotanagpur in 1850 and the Bhil people of Madhya Pradesh in 1880.[v]
For example, Jharkhand is one of the predominantly tribal states, in which 26.3% of inhabitants are tribals. The state contributes 8.4% of the Scheduled Tribes population nationally. Christians constitute 4.3% of this population. Jharkhand has had a history of missionary welfare activities since the 19th Century, especially in the Chotanagpur region. The role of Christian missionaries has been extensive and highly visible in almost all areas of tribal development, but education is one area in which it has given a considerable momentum to development. Christian missionaries believe in the principle of maintaining the status quo of an egalitarian society in which they involve themselves by looking at everybody as equal in society. In a speech delivered at the Scheduled Castes and Scheduled Tribe Areas Conference in 1952, India’s first Prime Minister, Jawaharlal Nehru, observed:
“The Christian missionaries went to various tribal areas and some of them spent practically all their lives there… I do not find many instances of the people from the plains going to the tribal areas… Missionaries did very good work there and I am full of praise.”
The contribution of Christian missionaries towards the education of the tribal people of Chotanagpur has been praised by many educationists.[vi]
However, Jharkhand is also known for its own tribal religion, known as the Sarna. Many tribal people have also demanded that the government recognise them as having “separate religion” as they practise their own set of norms and rituals rather than conform to the main forms of organised religion. Although Sarnas, who worship their ancestors and nature, are not counted separately, they make up most of the “Other” category, estimated at 11 to 13 percent of the population. Sarna groups claim that the actual number may be higher, given the absence of a separate category for them. A common perception is that despite their small numbers, Christian tribals have better access to higher education and jobs. Whether due to economic disparities or the stoking of enmities by different religious groups, the chasm between Sarna and Christian tribals has widened.
While speaking about religion among the Scheduled Tribes, a case to highlight is the Niyamgiri Mining case,[vii] in the context of granting permission to mining companies to set up ventures in the Niyamgiri Hills of Odisha. The Supreme Court of India held in the case that the government should also protect the religious and customary rights of tribals in addition to their individual and community rights. The three-judge bench in the case went on to state that the religious freedom guaranteed to the Scheduled Tribes and the Traditional Forest Dwellers under Articles 25 and 26 of the Constitution gives them the right to practise and propagate not only in matters of faith or belief but also all those rituals and observations that are regarded as an integral part of their religion.
The above-mentioned judgment implies that the Scheduled Tribes are also covered under Part III of the Constitution and have equal rights to freely practise, profess and propagate any religion of their choice subject to public order, health and morality.
The Struggle of the Scheduled Tribe in India with Christianity
The Scheduled Castes and Tribes (Prevention of Atrocities), or POA SC&ST, Act was enacted in 1989 to protect the Dalit and tribal communities from denial of economic, democratic and social rights and discrimination, exploitation and abuse in the legal process. Yet, violence and discrimination against the Scheduled Tribes have been rising.
One such form of discrimination is evident in the practice of social exclusion that tribal Christians face daily. Exclusion may often be as benign as not being invited to social get-togethers to being coerced to leave the village. Loss of livelihood, displacement and deprivation of basic facilities are a few among human right violations that tribal Christian, who refuse to follow the mores of a village, often face due to their faith. Families which are boycotted or ostracised experience deep trauma and often leave their homes and villages for good. This violates their right to life under Articles 21 and 15 of the Constitution.
The interests of members of the Scheduled Tribes have been protected in various legislations including the Constitution:
Article 42 deals with the promotion of educational and economic interests of the Scheduled Castes, Scheduled Tribes and other weaker sections of society;
Article 335 lays down that the claims of members of Dalits and tribals must be considered for appointments to services and posts under the central and state governments;
Article 338A stipulates that there shall be a commission for the Scheduled Tribes, known as the National Commission for Scheduled Tribes, to investigate and monitor all matters relating to the safeguards provided for the community under the Constitution or under any other law in force at a given time or under any order of the government, and to evaluate the working of such safeguards, and also to inquire into complaints concerning the deprivation of rights and safeguards of the Scheduled Tribes; and
The Fifth Schedule under Article 244(1) contains provisions regarding the administration of Scheduled Areas other than in northeast India.
Another law is the Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006. Besides, members of the Scheduled Tribes also have reservations in Parliament and national/state educational institutions.
One of the biggest challenges of the Scheduled Tribes is the ordeal of retaining their tribal status after converting to Christianity. With anti-conversion laws in seven out of the 28 states in India that put certain restrictions on an individual’s choice of converting to another religion, the Scheduled Tribes have often been subjected to adversities and hostility on account of their Christian faith.
The Supreme Court, in State of Kerala and Ors. V Chandramohanan,[viii] looked at if the father of a victim who belonged to the Mala Aryan community, a Scheduled Tribe in Kerala, could still avail the benefit of charges under the POA SC&ST Act against the respondent after converting to Christianity. The Court held that a Scheduled Tribe doesn’t lose its tribe status after converting to Christianity. The Court said:
“Before a person can be brought within the purview of the Constitution (Scheduled Tribes) Order, 1950, he must belong to a tribe. A person for the purpose of obtaining the benefits of the Presidential Order must fulfill the condition of being a member of a tribe and continue to be a member of the tribe. If by reason of conversion to a different religion a long time back, he/his ancestors have not been following the customs, rituals and other traits, which are required to be followed by the members of the tribe and even had not been following the customary laws of succession, inheritance, marriage etc., he may not be accepted to be a member of a tribe. In this case, it has been contended that the family of the victim had been converted about 200 years back and in fact the father of the victim married a woman belonging to a Roman Catholic, wherefrom he again became a Roman Catholic. The question, therefore, which may have to be gone into is as to whether the family continued to be a member of a Scheduled Tribe or not. Such a question can be gone into only during trial.
“We, therefore, are of the opinion that although as a broad proposition of law it cannot be accepted that merely by change of religion person ceases to be a member of a scheduled tribe, but the question as to whether he ceases to be a member thereof or not must be determined by the appropriate court as such a question would depend upon the fact of each case. In such a situation, it has to be established that a person who has embraced another religion is still suffering from social disability and also following the customs and tradition of the community, which he earlier belonged to.”
However, in M.A. Chandraboss and Ors. Vs. Controller of Entrance Examination and Ors.,[ix] in which the petitioner claimed the rights and benefit as a member of a Scheduled Tribe after re-converting to Hinduism, the Kerala High Court in 2015 held that a member of a Scheduled Tribe/Scheduled Caste who had converted to Christianity from Hinduism can claim the rights and benefits.
In Election Petition No. 30 of 2014, titled Sameera Paikara v. Ajit Jogi,[x] concerning the question whether the tribal status of a person changes after a religious conversion, the Chhattisgarh High Court on January 30, 2019, held that the “tribal status shall continue even after conversion to Christianity.” The petitioner, in this matter, challenged the election of the respondent to a Scheduled Tribe-reserved seat in a constituency on the ground that his ancestors had converted to Christianity and, therefore, he did not belong to a Scheduled Tribe. However, the court held as follows:
“It can be presumed that even if the respondent adopted Christianity, his right of status of Kanwar Tribe cannot be taken away.”
The Patna High Court in 1964 gave a landmark judgment in an Election Petition titled Kartik Oraon v. David Munzni and anr,[xi] dealing with the question of the election of a Christian member belonging to the Oraon tribal community to a seat reserved for a Scheduled Tribe candidate in that constituency. The Court held that:
“From the evidence of the parties discussed above, it appears that, even if a non-Christian Oraon omitted to observe some of the festivals and observed certain festivals in a manner different from others, he did not cease to be tribal. It also appears that the Christian Oraons also observe some of the festivals of the tribals which are not in direct conflict with the religion of Christianity. The most important thing that appears from the evidence referred to above is that the non-Christian Oraons treat the converted Oraons as tribals calling them ‘Christian Oraons.’ The very fact that the converted Oraons are called as ‘Christian Oraons’ shows that they are Oraons first and Christians next.”
Therefore, it can be safely concluded from the above-mentioned judgements that the status of a Scheduled Tribe after converting to another religion does not affect their rights and benefits as members of a Scheduled Tribe. However, despite this clear knowledge, tribal Christians continue to live in fear of being attacked due to their faith. Christian Scheduled Tribes are continuously discriminated against and their human rights and dignity of life are violated to pressurise them to “r-convert to their “original” religion.
Despite the Constitutional guarantee under Article 25(1), the religious liberty and freedom of the Scheduled Tribes continue to remain under threat and are part of their ongoing struggle. Law of the land needs to be upheld to secure and safeguard the rights of the Scheduled Tribes in India.
[i] Report of the High Level Committee on Socio-Economic, Health and Educational Status of Tribal Communities India, 2014
[ii] UNDERSTANDING THE INDIAN TRIBAL LIFE AND THEIR ISSUES ISSN: 2320-5407. Int. J. Adv. Res. 5(7), 1588-1595
[iii] AIR 1986 AP 154
[v] Religion in tribal Societies, UNIT 27 http://egyankosh.ac.in/bitstream/123456789/18895/1/Unit-27.pdf
[vi] Asian and African Studies, Volume 28, Number 2, 2019, THE CONTRIBUTION OF CHRISTIAN MISSIONARIES
TO EDUCATIONAL DEVELOPMENT: A STUDY OF TRIBALS IN JHARKHAND
[vii] Orissa Mining Corporation Ltd. Vs. Ministry of Environment and Forest and Ors. (18.04.2013 - SC) : MANU/SC/0396/2013
[viii] State of Kerala and Ors v Chandramohanan, 2004SCC(Cri)818
[ix] c. M.A Chandraboss & Ors V Controller of Entrance Examination & Ors 2015 (4) KHC 203
[xi] . AIR 1964 Pat 201