The invitation to submit views and ideas from the public at large on the Uniform Civil Code (UCC) by the 22nd Law Commission has raised the spectre of a serious threat to the autonomy of Scheduled Tribes (STs) in the Scheduled Areas of the country. As Article 44 of the Indian Constitution – which seeks to introduce a uniform personal law – is a directive principle of state policy, it cannot be tried in courts for violation. Therefore, it requires a law to make it enforceable by the courts for their violation.
Pandit Jawahar Lal Nehru while defending the introduction of the Hindu Code Bill instead of UCC in the Parliament in 1954, said, "I do not think that at the present moment, the time is ripe in India for me to try to push it through." But there is no substantial change in the circumstances; in fact, the fundamentalist communal forces have further widened the gap between the different religions, castes and ethnicities. This has further eroded the cultural cohesion among the tribal communities.
Historically, special measures were provided to protect the tribals from external interference during British India. The imperial legislation Scheduled Districts Act of 1874 was made specifying certain areas as scheduled districts to order to govern them separately. By Act XIV of 1874, Santhal Parganas and Chutia Nagpur (now known as Chota Nagpur) Division were created. In these `Scheduled districts', tribal communities were accorded a certain degree of autonomy to regulate their affairs based on their conventions and traditions. Similarly, the Scheduled Areas of Visakhapatnam and Godavari districts were notified in Madras Province.
The 1930 Simon Commission report emphasised the need to preserve tribal customs and provide special provisions to govern tribal areas. Following these recommendations, the British enacted the Government of India Act of 1935, which contained special provisions for the administration of areas inhabited by tribals which were delineated as partially and totally excluded areas.
After the commencement of the Indian Constitution, the partially excluded areas were mostly brought under the purview of the Fifth Schedule, while totally excluded areas were under the Sixth Schedule of the Constitution. KM Munshi, a member of the Drafting Committee, during the discussion, said, "We want that the Scheduled Tribes in the whole country should be protected from the destructive impact of races possessing a higher and more aggressive culture and should be encouraged to develop their own autonomous life.”
Special laws were made to safeguard the interests of Adivasis in all 10 States, including Andhra Pradesh and Telangana having Fifth Schedule Areas. The Governor of the State was empowered to withhold the application of any Act made by Parliament or State Legislature to the Fifth Scheduled Area and also make a regulation to protect the Scheduled Tribes with the consent of the President of India in consultation with the Tribes Advisory Council.
Not even an Act of Parliament concerning Naga customary law can apply to Nagaland, an Area under the Sixth Schedule unless the state Assembly decided by a resolution to do so. This is provided under Article 371-A. Similar constitutional provisions were made for Mizoram under Article 371 G. Constitutionally, there is a limitation to enact and apply a uniform personal law throughout the country that affects customary laws and procedures of tribes. It is evident that the intent of the framers of the Constitution in creating the Fifth and Sixth Schedule was that a separate administrative scheme should be established for these Areas to address the special needs of tribal communities.
Moreover, there is an express legal bar in the application of the codified Hindu Marriage Act, 1955, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956 to the notified Scheduled Tribes in the country. The customary laws alone are applicable to deal with the personal affairs of the Scheduled Tribes. And these Hindu laws have no application to Muslims, Christians and Parsees.
In 1996, the Parliament enacted the Panchayats (Extension to the Scheduled Areas) Act (PESA), which empowered a village in Fifth Schedule Areas to manage its affairs in accordance with traditions and customs. No law can override this piece of constitutional law with respect to the Fifth Schedule Area.
The policies of successive governments in recording land rights during land surveys have deeply affected the concept of community collective control and governance of common property resources for the tribals. Some lands were recorded in the name of individuals and community lands were brought under the control of various departments. This broke down the customary land governance systems, intensified their marginalisation, and created social conflict amongst the tribals.
If UCC is introduced, it would further erode the cultural cohesion among tribal communities. It is improper to encroach upon the cultural space of tribal communities dealing with their affairs by imposing uniform personal laws on them. The tribals should be left to democratically decide when and what changes they want to make in their customary laws pertaining to their personal laws.
Palla Trinadha Rao is a lawyer and an activist working for tribal rights for more than three decades. Views expressed here are the author’s own.