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Apr 10, 2002 3:22 pm
Hello,
Refereing
to barisa's mail "....But it's wrong. As per the law of land it is hinduism. " I think this is not correct. Since India is
a secular state of legal pluralism. Every body has their own right to follow their customs and tradiation. Although we have
state directive principles towards uniform civil code, but we are under civil code with personal laws provision for each religion.
People got confused because of Hindu civil code is secularised. That is the major source of confusion. Example recent judgement
of supreme court that tribal can not be prosecuted under Indian penal code section 394 for polygamy. That itself relfects
the tribal would not come under Hindu religion. You can write SARNA. That is perfectly under Indian constitution.
regards,
Naresh Chandra Murmu
Thu Apr 11, 2002 2:01 pm
Hi All,
In the last mail i expressed about our religion. I repeat the question
once again. what is our religion as per law of land? OR What is our( Santal's ) relgion as per law of land ( Indian constitution).
Question is not about number of indian religions OR It was not about "What is indian religion"
So what i understood from the question is - " By which religion , Indian
constitution
recognises Santals". So Nareshbhai, you said SARNA is recognised.But i have doubt about it? Anyway we have
to clarify it.
About polygamy or bigamy: As per my perception, Santals are treated
as Hinduism by inidian constitution.But there is another special provision by which, tribal can not be prosecuted under
HINDU MARRIGE ACT(i.e. santal allowed for bigamy).
OK. i will clarify myself once again.
with regards,
Barisa Kisku
Fri Apr 12, 2002 12:42 am
Dear Barisa,
What is our religion
as per law of land? Or What is our( Santal's ) relgion as per law of land ( according to Indian constitution). Let me put
my argument in short why according to Indian constitution, tribal do not belong to Hindu regligion that is the necessary condition
for proving the Santhal as separate religion from Hindu.
1. The Hindu code act 1955-56: This act is not applicable to tribal.
Most recent example is the recent supreme court judgement about the bigamy under IPC 494.(This I am putting again since interpretation
of law by Supreme Court is final according to Indian Constitution, Nobody can question it ) Had constitution considered tribal
in Hindu religion, it could not have excluded tribal from this act. Funny thing is that this law is applicable to Buddhists,
Jains and Sikhs. So even though Hindu act is applicable to them , yet that does not mean that they belong to Hindu religion.
Had constitution framer considered tribal as Hindu, surely tribal could have under this act purview. So it is with this spirit
and thought that tribal is different religion, some time they call it "peculiar religion" , tribal had been excluded from
The Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956 and the Hindu Adoption
and Maintenance Act 1956. If somebody declared the their religion as Hindu, he or she would be treated strictly under this
act.
2. The law on tribal is wholly free from religious. Any change
of religion tribal does not legally change his or her Scheduled Tribe status. This is not the case with Scheduled caste which
changes their status once they change their religion.(I am putting hereAlthough I feel , this is very weak argument.)
3. The census reports of India also do not treat the tribal communities
as Hindu. Tribal comes under the religion and persuasions( with appendix list of tribes). Only this 2001 census had some mischievous
work as part of BJP propaganda of including all tribal under the Hindu religion at least in document. They have not included
"other religion " column and appendix too. In earlier census it had been done so(1991).Many might have noticed it and there
was some furore too.
Now next question is whether Santhal religion is SANRA or not ? Here
constitution does not say anything, it considered our religion as Santhal religion. Like Munda religion, Ho religion etc.
Here I have also doubt that SARNA is accepted as religion or not under the constitution. I think we can take legal opinion
regarding this. But as a whole tribal are considered to follower of their respective religion( some call it nature religion
, some animist religion etc) according to constitution of India. Another thing, some of my Munda and also Oraon friend write
their religion as SARNA. But here law treat Santhal, Munda and Oraon as different religions . Probably we an trace back our
earlier discussion where many expressed the view that "SARNA and Santhal"is same and I feel it has legal biding too.( discussion
on Santhal and Christanity)
With regards,
Naresh Chandra Murmu
Sat Apr 13, 2002 1:40 am
Hello
Let me first clarified that I am putting all
my view based on the reading of book on Constitution of India by D D Basu and several other scattered article on Indian Constitution
According to the article 25 [http://alfa.nic.in/const/p03025.html] ".Explanation II.- In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference
to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed
accordingly." This itself rules out that the tribal is out of purview of Hindu religion. That mean definition of Hindu religion
does not include tribal. Now question comes where is the status of tribal in Indian constitution. The tribal are defined under
the article 342(http://alfa.nic.in/const/p16342.html) and now what is the constitutional safeguard is the 5th schedule (http://alfa.nic.in/const/shed05.htm) [since 6th schedule is not applicable to us]. Where all details are given Tribe advisory council is the main body to formulate
the rules and regulation for tribal people. we will be judged accordingly. So what Sonatanbabu said, I afraid it may be incorrect.
When tribal does not come under the purview of definition Hindu religion, we can highly rule out the inclusion of tribal into
Hindu religion (Of course I would like to go thru the judgement also as you mentioned in his mail)
"Or the Court wanted
to set their own reference in this regard. Has the court judged the future
bearing/implication of such a decision over
the community?" This judgement has far reaching bearing as expressed by Sanatanbabu since most of the time we used to make
settlement in the village customs and rules, so we did not brother this. I found many article showing the apprehension about
the misuse of he constitution by constitutional experts. But I have the feeling that apex court could have come out from law
and could have applied the directive principle (http://alfa.nic.in/const/p04.html) as did in case of Minerva Mill case,1979 and Shahbanu case 1984( but later Rajiv Gandhi introduced controversial Muslim
women's Bill to override it). I think this case might have stopped the Apex court judge to prevail upon the judicial activism.
Now what is the solution we have right now to avoid the bigamy ? I think only getting registered under the special marriage
act 1954 ( it is popularly called registry marriage) which gives us some kind of relief and I can not see any other solution
for it. I also would like to take opinion in this matter from others since it has really far reaching bearing when we are
moving towards the more urbanisation and more and more tribal people are getting educated , this will come surly one of the
major problem for us and I think we have to go into right direction to take our society march forward . I think as envisaged
in the All India ASECA agenda the codification of tribal customs and traditions, and make it law, I feel it need to be scrutinised
more deeply in the light of this Apex Court judgement. Otherwise this can be grossly misused by tribal in present law. There
is one point to lament that there is so far no law for tribal( social ) ? I Think we need to have close look in this matter
too.......
With regards,
Naresh Chandra Murmu
( Country like Africa, America( not sure) and Australia
have separate law for tribal what they call "Indegenius people" under the UN declaration, funny part , india does not recognise
it, although it hasused this term for getting loan from world bank)
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Sat Apr 13, 2002 2:07 pm
Sanamko Johar,
As Barisa babu has correctly said and most of us
may also feel the same way...as discussion here is sort of one way communication and it leads to distortion of one's theme
of message. Hence face2face discussion, at least for santhal group of same city is highly required to come to a fruitful result
of valuable opinions. In cuttack here atleast once in a month we are meeting to discuss. Some point from the discussions in
month of march has already been sent to President, AIASECA, New Delhi also. With regards to supreme court decision mentioning
lot of act and IPC was difficult on my part to understand fully. If anybody put it in simple way then i shall be thankful.
However it has correctly stated that tribals are not Hindu..just otherwise they are professing hinduism. The statement
as reproduced below will clear that:-
""It was conceded by the appellant that ``the parties to the petition
are two `tribals,' who otherwise profess Hinduism, but their marriage being out of the purview of the Hindu Marriage Act,
1955 in the light of Section 2(2) of the 1955 Act, are thus governedonly by their Santal customs and usage''. ""
i.g.soren,
Wed Apr 17, 2002 11:10 am
Sanamkoge Johar,
I want to make one point in this discussion. Whether somebody is a
Hindu or not should not be derived from some kind of Hindu act. The word Hindu is used because it is applicable to Hindus
besides others, and these others are defined in the act. A person is a Hindu if he lives according Hindu customs and traditions
generally[inportant ones birth, death, marriage, festivals, daily worships]. I have said generally because one need not follow
everything. When ii is said that this Hindu law applies to people having sikh faith also, it means that the law applies to
them, but they are not Hindus. As far as the tribal are concerned, they are definitely not Hindus, but again some common traditions
persists like celebration of Sakrat.
As far as a law against polgamy for the tribal is concerned, one just
need to extend a particular Hindu Act. By this action, tribals would not become Hindus as is the case with Sikhs. However,
you must remember the following.
(i) This would be only for the satisfaction of those who get offended
by this custom. But it does not mean that the law should not be enacted. It means that it is only a beginning. If you just
leave it after having the law enacted, nothing will happen. There is a law against child labour, but you know that everywhere
children are working. There are many such laws.
(ii) Some People coverd under Hindu marriage act still to continue
practice polygamy. There are many such people I know of, and they must be having a way to circumvent the same.
(iii) Also, polygamy in Hindu act in non-cognizable offence, ie, only
the affected parties can complain. What it means is that polygamy is acceptable to the society if the affected parties
do not complain. What it means is that you cannot file a case against a third person who is having many wives. I may be wrong
here. Please correct me if I am wrong. It is definitely permitted by their customs as Dasarath had three wives, and there
are many such example.
(iv) Think about Muslims. How many of them practice now? If you have
some friends over there, you will find that the practice is considerablyreduced in spite of the fact that the law permits.
(v) So, times have changed now, and tribals do require such a law,
andwhat about making the Hindu marriage act cognizable.
With warm regards,
-R. C. Hansdah
Dear all,
I extend my sincere thanks to the participants for sharing their views
on a topic vital for us. Though we are not legal experts, still from reading the text we can understand the things.
It appears that we need to consult an expert to know about our position. Here I am trying to share my understanding
on the issue with the back up definition reproduced by mr. Naresh.
The statement in the judgement In the absence of a notification or
order under Article 342 of the Constitution they are deemed to be Hindus. is a matter of concern. We need to know
what does it mean?
The statement of mr. Naresh In the definition Article 342 , it is not
mentioned that what is the religion of tribal. So court think unless tribal prove they are not Hindu, Court will deem
them Hindu( according to Hindu Code).
If the position is: (1) nothing contained in this Act shall apply to
the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless
the Central Government, by notification in the Official Gazette, otherwise directs.
When Court knows tribals are not covered under Hindu Code, why it will
treat them as Hindu even lets say for the purpose of Hindu Code. Again, the Supreme Court relied on Custom and
Usage which is part of this Act and based on this provision the order was passed.
What is the difference between Hindu and Hindu Religion. Are they separate
or separable? This is the question what puzzled us. By reading the order it is understood under Art. 342 religion is not
specified as a Christian or a Muslim can also be a tribal. I have not come across a tribal from other faiths given under.
Is it correct to say Tribals cannot be prosecuted for bigamy? as all tribals are not covered under Hindu Code.
When a tribe belongs to Christian religion or Muslim religion, I think this concession is not available to him/her.
Again this needs clarification.
It is not true as mr. Naresh is writing at the end Tribals are not
Hindus in any sense. There are tribals who have been hinduised long ago. Here also all tribals cannot be taken
together.
We intended to raise this question in order to elicit public scrutiny
of the judgement not only the religion issue. It is not to give our opinion on what is our (sandals) religion.
On reading the verdict of the Supreme Court we understood that the Supreme Court has taken us as Hindus and applied
the Hindu Marriage Act and from that extended the exemption under customs and usages. Otherwise it would have
out rightly dismissed the applicability of Hindu Marriage Act as tribals are not covered under this as stated above.
We know our religion is not Hindu (though some prefer to call themselves due to ignorance or personal preference), but
the existence of confusion in the order raises these ifs and buts. Lastly, I feel if we want to be known as a separate
entity we need to document our personal law which will become an act. It is required for better regulation of
our social affairs to bring in discipline. Please note that bigamy is not for male only it can be practiced by female
also.There are other issues too. I am not stretching further.
Yours pc hembram
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