[This section contains some of the session notes submitted by the panelists. We invited Prof. Hiren Gohain to deliver the keynote address. Although he accepted our invitation, he could not join the dialogue due to unavoidable reasons. We reproduce the letter that he wrote to Dr. Ranabir Samaddar regretting his inability to join the dialogue. DK & SKD]

1. H.N. Gohain’s Letter

To

Dr. Ranabir Samaddar CRG,

Kolkata – 700 106. Fax: 2337 1523

Dear Dr. Samaddar,

I have only recently had a chance to look at the papers of the Third Civil Society Dialogue on Human Rights and Peace.

I must say the thoroughness and sincerity of the discussions, the freedom from bias and the genuineness of the intellectual exchange have impressed me.

But I should like to comment briefly on a few aspects, which appear to me as problems.

The term “civil society” adopted from current Western discourse on politics already homogenises and fits into a pre-conceived pattern the frustrations, grievances and resistance/struggles at different levels and sites. Every such voice must be attended to. But it may not be possible to accommodate all of them in any concrete arrangement of polity.

Let me cite two examples. The Naga Students’ Federation insists that women’s participation in self­-governing bodies will be a violation of Naga custom and tradition. Secondly, the current imbroglio in Assam about the territorial compactness of autonomous territorial unity threatens democratic rights of people/ethnic groups that do not share the same aspirations as those of the politically dominant group. Consider the resentment of Koch-Rajbangshis against Bodo hegemony in the proposed Bodoland Territorial Autonomous District (BT AO in short).

The questions like these are not simply those of squaring autonomy with justice. These will perhaps have to be discussed within a broad context of democracy, which demands a transformation of the given traditions of the ethnic groups in the light of a more universal concept of society and which is to political rights of other groups resident in the same region.

While pluralism may be an interim arrangement, each ethnic group must in my view agree to sacrifice certain time-honoured practices and traditions in favour of certain more universal (and homogenised) rights. Otherwise fundamental differences will lead to intolerance, exclusiveness and friction. The prospective new pattern may have room for variety but not absolute heterogeneity.

Actual implementation of the provisions of autonomy ought to be looked at more closely. The Sixth schedule, designed originally for a community that largely combined shifting cultivations with food­-gathering, largely isolated from operation of the modern economy, with poor literacy, has become obsolete and useless in a community that has advanced much further. The members of the autonomous council rightly considered it an infringement of their autonomy when even their annual plan was drawn up in the State Planning Board. The Tribal Development Council could be asked to consider the stage of development of such tribal communities and recommend from time to time suitable amendments of the constitution to Parliament.

It has been repeatedly affirmed during the discussions that as soon as autonomy is handed down from the Centre, it becomes leverage for control. In that case it is a distortion or forgery of the real thing. In a vibrant democracy fundamental civil rights do not lose their potency simply because the constitution grants them. The vital issue here is whether the state believes genuinely in devolution of power. It is a question of ideology.

It seems to me that the discussions take place largely under constitutional/legal perspectives. The socio­economic, historical and ideological aspects get sidelined. The result is not very happy.

Can we discuss the relationship between the women’s autonomy and its relation to indigenous peoples movements without paying attention to “telescoped” development (Trotsky), where the rise of a modern patriarchal-capitalist property system and modern nationalism both develop simultaneously with re­assertion of ancient matriarchal traditions that have not yet been erased?

Further it seems to me that the ethnic assertions and resurgences take as their model the sub-national movement of socially more developed neighbouring groups, – e.g. the Assamese in Assam. The Karbis even claim that different ethnic groups in Karbi Anglong are moving towards assimilation with the Karbis. The Bodos would perhaps like to imitate the Assamese device and design of assimilation. Such movements do have a popular democratic content. Hence they gave a fillip to women’s participation. yet the general framework of most movements has been to increase masculine authority.

The Sixth Schedule was not originally intended as a step towards full-scale autonomy. The tribal movement in Assam prior to independence did not envisage assertion of individual ethnic groups. In fact the famous Tribal League had been an umbrella organisation with all tribal associations and movements under it, and it had demanded from the provincial government measures for tribal welfare and development. The character of the tribal movement has become quite different from the late sixties onwards.

The attitude of the Assam government – largely apprehensive and oppressive – and the various sects of Christianity, which insisted on exclusion from the’ heathens’, also need to be studied in some detail.

These historical facts have socio-economic dimensions.

As for the question of violence it has apparently arisen out of an environment where dialogue is either absent or pre-empted. We shall need some adjudicative mechanism for disputes between “autonomies”, that is groups claiming and enjoying autonomy in various measures – it may be a federal arrangement.

Hope these views will be circulated and the feedback sent to me.

Sincerely yours.

Hiren Gohain

1. The context of democracy and citizenship

In recent years the theory of democracy has come for close inspection from two angles: the way people are governed (ways of governing, ensuring justice, etc.), and the substance of citizenship. These two points can be re-stated as: (a) Democracy, particularly post-colonial democracy, is judged in terms of distribution of power, the gendered structure of this distribution, both horizontal and vertical reach of power, ways of negotiation between rulers and the ruled, and the way in which law, legality, constitutionalism and politics interact; (b) Democracy as a theory of empowering its constituencies, that is citizens, is interrogated on the test of how much its policies and practices have been plural, variegated, accommodative, capable of facilitating the process of sharing of sovereignty, and seen in this light how substantive has been its policy of conferring citizenship. An examination of the framework of autonomy thus implies examining the landscape of citizenship – its hierarchical or egalitarian universe.

The issue of autonomy has become relevant in the context of the above two questions, particularly posed in Indian context. After India’s nearly sixty years’ history of law-making, series of legislation marked by demands for human rights, justice, and for egalitarian sharing of resources, affirmative actions or positive discrimination, successive elections, protection of minorities and the indigenous communities, the existence of large number of migrants in a territorially demarcated community now looked as “threats” to the existence of such community, special provisions relating to self-rule that include provisions of autonomy under fifth and sixth schedules, and other provisions in the Constitution, and accentuation of the process of decentralisation through the 73rdand 74th Amendments to the Indian Constitution – the issue of the relation between democracy, autonomy, and citizenship assumes significance in the Indian context. On the other hand, the establishment of autonomous and local self-governing institutions, with their roots in colonial governance, is intended, at least theoretically, to provide space for the common people, who it is expected will be able now to express their opinion on local issues. Similarly, the reservation of 33% seats for women (who constitute about 50% of the total population of the country) in the panchayati raj institutions (PRIs) is considered another significant step forward to ensure the participation of population in local governance. The women, who were erstwhile almost entirely excluded from the public space in a patriarchal society, are now considered to have a scope to come out of the private domain and express their opinion with regard to the governance of the society. This also marginally provides an opportunity for women to reorient the existing political and social set-up in their favour. In this regard, it is important to note that these measures of decentralising governance were not taken by the Indian State in a vacuum. They were adopted in view of social, economic, political and cultural mobilisations and changes in different parts of the country. The social movements as well as the political agitations in the country have created a political backdrop for “new institutionalisation” of decentralized governance. The system of decentralized governance and graded autonomy has been considered as a response to these demands and movements.

2. The phenomenon of the demand for homeland

One of the critical aspects of this situation is that citizenship and the special provisions of autonomy are now mixed up with politics of homeland – an indication of how ethnicity, nationalism, patriarchy, and majoritarianism mark the political world of citizenship. Continued discrimination, lack of development, sustained poverty, politics of identity, majoritarian politics, and above all a nationalising state that builds its core around fictive ethnicity and extreme centralisation of power – all have combined to make the presence of migrants (internal and external – from outside the country, state, district, clan, tribe, etc.) an issue around which the demand for homeland is being made and populist demands are being framed for all types of exclusion. The scenario extends from the western coast of Maharashtra to the North Eastern hills. This situation shows how the politics of autonomy is perched on the twin planks of geopolitics (territorial politics) and ethno-politics, that make autonomy at once a contradictory phenomenon – an indication of a surge of democratic aspirations, at the same time of limiting (or denying) democracy territorially and spiritually by creating a fictive collective that marks itself apart from “migrants” and all outsiders. How to innovate ways out of what has been called the “democratic deficit” is one of the challenges in the research on autonomy, because autonomy clearly stands on two legs today – the nation form and the homeland forms of politics.

3. The requirement of a dialogic polity

A study of autonomy in the above-mentioned context of democracy and citizenship will have reflections on the idea of how to build a dialogic polity that has the capacity to produce new ways of negotiating the problem of difference. One of the fundamental tests of South Asia’s democracy, as many other post­colonial democracies, relates to its capacity to promote tolerance, ways and forms of accommodation, and prevent the state from becoming runaway with a majority-centric structure and orientation.. The issue is: Can the constitutional order become more than mark of sovereignty, and become the mark of a dialogic order, where in the current geo-political and ethno-political realties, the constitutional polity can encourage newer spatial and spiritual forms or dimensions of a dialogic polity? An inquiry in such context will also bring out the ground reality of the way in which women have become citizens even while remaining subject to the patriarchal political order, and what the political demand for autonomy has signified to them. A gender-structured approach to the issue will be instructive because it will bring out the trends affecting the fortunes of India’s democracy – trends that remain obscure from much of the formal and legal analysis of citizenship.

In this requirement of a dialogic polity we have the tests of justice, recognition of past injustices, and the promise and guarantee of innovative practices. We have to note also in this matter the relevance of international law and comparative international legal experiences. Increasingly international law is recognising the significance of autonomy as a means to assure vulnerable groups of people including minorities and indigenous communities their special rights, self-rule, and defence mechanisms against majoritarian polities. The recommendations of OSCE, the Basle Convention, the recommendations and decisions of the Minorities Sub-committee of the UN Committee on Human Rights, and the major non­discrimination resolutions such as the 1992 Declaration are only few examples of the new understanding, namely, that ,autonomy is not just a measure of some special provisions for vulnerable groups in some selected places, but that it has to become one of the principal features of the entire range of political-legal arrangements in face of the existing fundamental asymmetries in power which’ often mark the constitut6ions or limit their goals and function.

4. Variety in Indian forms of autonomy and the limits of the Indian model

There is no uniform civil law, on the contrary a variety of personal laws, and linguistic autonomy in some measure. Indian constitutional and political system has evolved through at least seventy years history of a range of forms of autonomy – administrative, cultural, religious, fiscal and legal-juridical. Yet, demands for right to self-determination ranging from more autonomy to secession have arisen frequently, and if some have mellowed, others have persisted ‘and have grown insistent notwithstanding massive state ­suppression and loss of lives. The legal-administrative measures for protection of autonomy such as the Minorities Commission, Human Rights Commission, Women’s Commission, are severely limited in their powers. These national commissions have their state counterparts even more limited in powers and functions. So are weak and inadequate the commissions in the states for protection of minority languages and cultures, interests of scheduled castes and tribes. In short, we have in the Indian instance the most extra-ordinary juxtaposition of measures of autonomy and a relentless centralization – seen from another angle, the most relentless constitutionalism and the most insistent cry for the political self to achieve recognition. To put briefly, “the Indian paradox” lies in two contradictory facts – (a) the Constitutional-­political system is marked by a sense that autonomy is an exceptional measure, and (b) the politics of the country shows that the demand for autonomy is widespread and has assumed a variety of forms.

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5. Autonomy or heteronomy?

As is commonly understood, the notion of autonomy is seen as belonging to nature, that is to say it is the source or the basis of political morality – claims and obligations. In the political context, individuals or communities as political actors should possess independent self-governing and self-legislative authority. The philosopher Immanuel Kant thought of rational actors who could be lawgivers or legislators to themselves, and therefore responsible for their modes of behavior. This was to him a universal principle that required that one could set one’s own ends only within a framework that was based on acceptance by all other such beings. Autonomy, the categorical principle, was to lead therefore to harmony and discord. Autonomy was “the property of the will by which it (was) a law to itself (independently of any property of the objects of volition)” “subject only to laws given by himself but still universal”. One should notice here that Kant in describing autonomy as “property of the will” was integrally linking it to will. By the same token however, autonomy was thus different from freedom, because, if as Locke thought, freedom was the condition of a person “to think, or not to think; to move, or not to move, according to the preference or direction of his own mind,” autonomy implied on the contrary responsibility, legality, universality, and morality.

We can see thus from the day. when people started to think consciously of autonomy as a principle. it had within shades of the idea of heteronomy.

To be sure, the long liberal thinking of autonomy never came to terms with freedom, will, and the political realities of coercion and management of orders connected with will. Is there then a hierarchy of values involved in this uneasy relation between autonomy and the other values of freedom and will? Can we say then that a person is autonomous with respect to a desire if she is not moved by it, or she has not identified with it, or if she does not want to be so autonomous? In an autonomous move the actor directs and governs the action. But what explains this autonomous move? Free will? Reason? We can already see the contours of the paradox. If we say, reason governs my life and is thus the source of my autonomy, the problem is, what do we say of the actor who is guided by passions and claims to be autonomous? Clearly the unease that’ surfaces the moment we think along that line indicates a confusion here – autonomy suggests freedom, yet it suggests regulation, direction, or to be precise, self-regulation, self-direction, and self-governance. Autonomy is thus only but one subject in the empire of conditions. These conditions of management, rule, governance, and admissible forms of politics are so basic, and intensely physical or material, that issues of autonomy affect and involve the body even. Autonomy also indicates therefore what has been famously termed by critical theorists as “split of reason”.

The Indian experiences of course suggest that there is more to the paradox that I am hinting at here. In the construction of a political society, people or the actors continually face the principle of several autonomies. These autonomies (horizontal, vertical, political, fiscal, cultural) mark the contentions and engagements that make a political society. In this political society, what we term as public sphere is one hand regarded as the “habitus” of democracy, on the other hand, it shows itself to be singularly incapable of coping with what I call the “politics of autonomy”. One reason which I do not want to anticipate here is the fact that modem democratic polities with their celebrated public sphere are not all dialogic, therefore they understand freedom much more and ready to guided by wills, but cannot cope with autonomies, perched as they are the old juridical notions of sovereignty. All these polities can accommodate is a sort of “boutique multiculturalism”.

We can of course argue that nationalism and democracy have broadened the public sphere and the disadvantaged within the group has now access to justice previously denied to them. Also it can be said. that in the democratic argument at least one kind of autonomy looms large. Yet, the questions remain, such as: Can we have a differential system of justice in place of an equal system of public justice with one or the other group dominating the public and turning its norm into its favour? The predilection further is, if we have a differential system, will it be competitive or cooperative? Since a modem constitution is based on the republican system of an equal public sphere that sees autonomy as an exception, how will such a basic law inhere autonomy as an integral principle of democracy? Also important is the question, how will that equality be pursued in lands of hierarchy? The closure or the aporia, I shall argue, can be negotiated only by a politics of justice that places the agenda of a new dialogic order at of the core of the ‘issue of self-determination, and makes autonomy a factor in a “heteronomous” world.

The aporia, which I term as the “democratic closure” is clear, and the situation can be summarized briefly as follows:

• Autonomy hangs as a categorical principle between freedom and regulation, and likewise between reason and passion;
• Autonomy being subject to rules and regulations is an event in the field of governmentality, where freedom and life become subject to governing codes and rules reflected in the “will to power”;
• Autonomy is struck between a republican legal code and a hierarchical order, and is yet to achieve a satisfactory regime of legal pluralism;
• The juridical theory of sovereignty is strengthened by autonomy as a regulative principle, while the political theory of autonomy requires as its fulfilment “autonomy of the autonomies”;
• The success of autonomy depends on the effectiveness of a dialogic order, while autonomy has to depend on the strengthening and the relentless invocation of constitutionalism, which marginalizes the dialogic spirit.
• Though the history of autonomy seems in a typically idealist glass the progressive realisation of a democratic spirit, its conclusion is marked by a combination of geo-politics and ethno-politics, which go far beyond the twin problematic of territory and identity, and summon the very ingredients of the particular mode of power on which modem politics is based.

All these features built around concrete instances of history, politics, and society, call for a new theorizing of the theme of autonomy, which can take into account the tensions and the virtues of dialogic forms and dialogic order. A critical theory of autonomy will aim at making a fruitful negotiation with the paradox inherent in the politics of autonomy – namely that, it is the dual site of regulation and freedom, power and will.

When the invitation of Calcutta Research Group to participate in the dialogue on Principal and practice of the Autonomy reached me, trepidation, not jubilation, hesitation, not satisfaction gripped instinctively. How come this? Why me. Who misjudge the judge. When I glanced through the great names who have been invited in this dialogue – a majestic procession of scholars – I wondered how dare I an anonymous persona – non – grate, from a small town like Siliguri venture to sit along with them. However, I take the Privilege to participate in this occasion and tender my grateful thanks specially to Dr. Ranabir Samaddar for his mystifying goodness in choosing me, whether I will fill the bill is a different matter.

I am also happy about another related fact, and that is the venue of this deliberation as no other part of the country has witnessed so much turbulence as the North East including Darjeeling has done.

There is no scope to go into details but this is much clear that both human rights and the rule of law have been conspicuously weak, if not also absent, from the way things have been conducted in this part of the Country. This is a cause for serious disquiet. The fact that it was decided to organize this function at Darjeeling speaks for itself. I hope, this initiative will be the precursor of many more similar initiative. I shall concentrate my deliberation on the title for discussion. “Why is violence so pervasive in the movement of Autonomy?” With special reference to the Autonomous Darjeeling Hill Council which was tabled after bloodshed and fire for long Four years and Kamtapur movement that rocked North East.

One after another autonomous council for different region have been signed and before each agreement there was clarion call to end the blood shed. Still the rattle of bullets echoes every nook and corner of this region. Here lies the riddle in the movement for autonomy. Another underground groups surfaced through their voice of gun claiming with further autonomy in other pretext.

So the basic question knocks our sagacity, how does one think? The question is important, whatever the issue or the area of one’s concern, because of this thinking, on the nature and adequacy of the understanding it provides, depends the nature and adequacy, the ultimate effectiveness of how one acts, in the matter. It is our diagnosis of a disease, which determines its treatment. In the same way it is our explanation or understanding of social reality, any aspect of it, which indicates the prescription, the necessary purposeful action on our part.

The seed of violation in the movement for autonomy was germinated on the very day when the East India Co. annexed South Sikkim to their empire and for quite some times called the annexed portion British Sikkim while the left over of the kingdom was referred to as Independent Sikkim. The area was later named Darjeeling after a village that existed there and subsequently formed into a district by the same name. So Sikkim in reference to Darjeeling district can he called mother state and West Bengal to which this part of Sikkim was latter annexed as a district may be called surrogate mother state.

In searching the reply for the depicted issue, the basic questions surfaced in mind how far the movement of the autonomy is autonomous itself? Whether both internal and outside agency, taking the advantage of unique geographical position of North East have the remote control in steering the movement according to their projected program. Above all, the government tendency to view the unrest as a law and order issue ignoring the causes of conflict, such as the neglect of the region by economic decision makers, encroachment of land by immigrants, denigration of the Local Culture and attacks on peoples identity.

Despite the high level of education land continues to be the main source of live hood but immigrants encroaches on it and causes shortage. The Bangladeshis are such immigrant groups but not the only one. A much bigger number comes from the Hindi hear land of Bihar and U.P. Many local communities resent the fact that immigrants prosper on the land by encroach upon, while they are left behind. For example, most attacks in the Karbi Anglong district of Assam have been on the Biharis who have occupied land there.

The conflicts began with attacks on outsiders and slowly turn into ethnic conflicts within the region. In the context of the land shortage caused by encroachment and the failure to invest in productive jobs, as its exclusive rights, so each community rewrites its history to claim on indigenous status and the exclusive right over resources in a given area. Ethnic conflicts are a direct consequences of such hardened ethnic identities and exclusive claim.

It should be kept in mind, when the political system gives the votes to the many, and the economic system gives the bread to the few civic disorder is almost inevitable. When the vote is a human right and bread is a privilege of the few, democracy is a mockery, it cannot be an instrument of peace and harmony, because it is not instrument of Justice.

Please allow me to come back to Darjeeling. The demand of a separate state named Gorkha Land has a long history and all the demands coincide with specific historical background.

The first demand for separate state was made as far back in 1907. In spite of the justification of the demand in favour of imperialism, the British Crown failed to approve the demand, as at that time Britain and Czarist Russia was engaged in rivalries in Tibet. Since Himalayan state including the Indo-Mongoloid Buddhist of Darjeeling Hills had ethnic and super structural affinity with Tibet, formation of separate state by partitioning Bengal might have endangered British position in the Himalayas. So the British rules preferred to keep Darjeeling hills with Bengal. Had the demand of 1907 been accepted Nepali nationality in Darjeeling hill council never have emerged as according to the 1901 census, Nepali speaking people was 40,101 out of total of 1,42,492 hill people.

Again in 1917 Demand for a separate state named ‘North Eastern Frontier State’ (Darjeeling Jalpaiguri and part of Assam) was raised. But it was a period of First World War. Seeing the co-operative attitude of the Indian National Congress (being dominated by moderate group) the British Government feared to arose mass resentment in Bengal by further attempt of partition of their province.

The British planters renewed their effort for separate state in 1929. Dalai Lama, who had so far remained a friend of the British shifted his fraternal affinity to-wards China. The Indo-Mongoloid ethnic communities were also demonstrating their affinity so for a separate state was turned down.

Moves for separate state made in 1933, 1939 and 1943 were based on the same principle but was turned down as during this period the British was engaged in the Second World War and had no time to look into his home front.

The undivided Communist part of India, headed by present leadership of CPIM also raised to create a separate Gorkhasthan even with a option to create a sovereign state.

Gorkha Hill Council was formed but how it enjoys its autonomy in governing the Darjeeling Hills? Take for example about Municipality affairs. They are in a fix whether they are under the governess of West Bengal Municipality Act or by the Darjeeling Hill Council.

Kamtapur Demand of the Rajbangshi Community has emerged in the plains of North Bengal. K.L.O. (Kamtapur Liberation Organisation) has chosen the voice of the gun to register there autonomous existence but the time will not make a room for discussion.

Autonomy in Assam can be considered as a form of democratic ethnic assertion that grew alongside the anti-colonial struggle in the first half of the 20th century. That is one of the principal reasons why the 6th Schedule was formulated. Assam is a state where different ethnic groups have lived under different forms of autonomous systems for a very long time. Even during colonial period, there were certain provisions that were important for indigenous communities in Assam. Therefore, today one finds a variety of autonomy systems within the state of Assam and the process of formulation and re-formulation of these systems continues. What is important to remember is that none of these several systems have been able to satisfy the aspirations of the concerned communities. That is why the Koch/Rajbangshi are demanding to be recognized as a scheduled tribe; scheduled tribes like Deoris are demanding autonomy under the prevailing state system; the Tiwa, Rabha and Mishing communities who enjoy autonomous councils are demanding autonomy under 6th schedule with demarcated territory; the Karbis and Dimasas who have autonomous councils under 6th schedule with demarcated territories are demanding separate states. Elsewhere, even where statehood has been granted as with the Naga people for example, it has been unable to contend with the demand for sovereignty.

What one is trying to say here is simple. These autonomous systems are either inherently flawed or these movements for “demanding autonomy” are in reality more complex than they seem to appear to us. From my understanding, these complexities in autonomous structures are directly related to:

1. Identity crisis of all ethnic communities.
2. Absence of any remedies under the existing system.
3. Unresolved nationality and self-rule issues.

The tragedy in Assam today is that one sees the continuing assertion of autonomy by peoples, within a system that is the worst example of autonomy. Consider the fact that the government of Assam is for all practical purposes, is de-facto governed by retired army generals, intelligence officers etc and controlled by policy makers with no understanding of the historical conditions of the people, and the tragedy becomes more pathetic. To think of an inherently repressive structure going around granting “autonomy” needs serious questioning. In a system that has still not recovered from its colonial baggage, it is absurd to expect democratic notions of responsibility and dialogue to filter down as generous gifts from the state.

The state on the other hand considers these complexities as a threat to its centralized system. It therefore tries to twist the aspirations from the beginning. Nowhere is this process more apparent than in Assam, where the state has engineered divisions and conflicts between communities to prevent the possibilities of a strong movement of the ethnic communities. This is also accompanied by the use of repressive measures, which introduces violence in different social movements, including autonomy movements.

Historically, the Assamese people got to know of India through the courts, schools and colleges in colonial Bengal. During that period, Calcutta sustained our literary growth with famous personalities like Lakhinath Bezborua, who started literary associations for the development of Assamese culture. However, for the common people who could not afford the expensive education and trip to Calcutta, India was just “Queen Victoria’s Police” and finally “Gandhi-baba” who it was said, could help us get rid of the police. Today a popular Assamese saying goes: “Dilli bohoo dur”- meaning “Delhi is far away”. After more than five decades of pretending to be citizens of a nation, the experiences of different movements has suggested to the people that Delhi is generally deaf and can only hear loud explosions and gunfire. It is a sad situation for any human rights movement to acknowledge this, but if we do not accept the conditions that gave birth to us as an organization, we will be going further away from trying to achieve justice and peace for our people. As a member of an organization that has consistently articulated the right to self-determination for the people of Assam, I shall be failing my organizational position if I do not mention the fact that none of these arrangements is going to fulfill the aspirations of the peoples who demand autonomy or self-rule, unless some fundamental changes are made in the prevailing body-politic in India.

Respected President, Distinguished Participants, Lades & Gentlemen,
At the outset I convey my heartfelt gratitude to the Mahanirban Calcutta Research Group for inviting and providing me this opportunity for exchanging our views in sharing to the anxieties, agonies and sense of insecurity prevailing in the mind of the sons of the soil. You might be aware that our state “Tripura” was once a princely state ruled by Tribal king and tribal people were majority in the state, but due to huge influx from erstwhile east Pakistan, now Bangladesh, the indigenous people in this state, that is the tribal population were reduced to a microscopic minority in the state, which has changed not only demographic picture of the state, but also compelled the simple minded tribal to face the new socio-economic order and in the passage of uneven competition, the larger tribal population were exploited and reduced to a day labourer in their long cherished dreamland. The feeling that no where in the country the majority people were reduced a microscopic minority and also feeling whether the tribal population will be further reduced proportionately in the state has created a sense of insecurity specially in the mind of the new generation because it is within their knowledge that democracy is the gambling of numbers and policy decision is taken on the basis of majority peoples’ verdict. It is experienced that the national and state level leaders sometimes forget the ground reality and they cannot reach to the mind of the groaning masses confronted with multi-fold adversaries. This fertile situation is the kitchen house for violent movement either for complete freedom like Swadhin Tripura or Movement for Powerful Autonomy in the name of preservation of age-old cultural identity and right to self determination of the indigenous people.

The Tripura Tribal Area Autonomous District Council is the outcome of such long demand for autonomy within the tribal dominated area of the state of Tripura created under article 244(2) of the constitution of India vide forty-ninth amendment brought in force with effect from 1.4.1985. It is pertinent to mention here that in Para 20 of the sixth schedule, Tripura was not included but subsequently Tripura was included in table IIA of the Para 20 of the sixth schedule after forty ninth amendment of the constitution of India with effect from 1.4.1985. It was expected that the long cherished aspiration of the tribal masses would be fulfilled with the creation of autonomous district council, but 19 (nineteen) years experience of A.D.C. had frustrated to tribal masses who were expecting positive role from A.D.C. for all round development in socio-economic-cultural field and also ushering new era for tribal people. The causes for such failure of A.D.C. in fulfilling the aspiration of tribal people of Tripura were, perhaps, due to its limited Legislative, Administrative and economic power vested under Para, Para 7, Para 9, Para 9 and Para 10 of the sixth schedule to the constitution of India.

It will be evident from the para 3 of the sixth schedule that A.D.C. can make laws only limited matters like social customs, regulation of practice of Jhum etc. The A.D.C. has no legislative power to enact laws on the education, agriculture, fisheries or any other policy matters on establishment and management of Hospitals etc. The secondary schools or hospitals within A.D.C. were not in the control of the A.D.C., but of the state government.

The A.D.C. is financially in the mercy of the state government. Unless fund is released by the state Government, it can not function properly. It is fact that under para 6(2) of the sixth schedule of the state government can entrust to the A.D.C. function of the state administration either conditionally or unconditionally, but it depends on the political will or political relationships of the state government with the A.D.C. In Tripura, the power and functions of the state administration were not entrusted to the A.D.C. In fact, the A.D.C. of Tripura has been running with flesh without blood and definitely such institution can not fulfill the aspiration of the tribal masses.

It is experienced that the Tribal population in the state has already been reduced to microscopic minority, but till date the Tribal people are majority within the A.D.C. areas. But the picture says that the Tribal are also going to be minority in the A.D.C. areas for constant and gradual entry of non-Tribal within A.D.C. areas, which should be checked by any appropriate means and measures. Otherwise the Tribal people will also be minority in A.D.C. areas threatening the existence of A.D.C. in the state. I do, therefore, demand that Inner line permit should be introduced for the A.D.C. areas in the state for the protection of the Tribal people in the said areas.

Perhaps on this reason, the demand for more power and autonomy to A.D.C. has become one of the most popular demands of Tribal of Tripura. The extent of demand of more powers, in fact, is not clearly demarcated. Some people demand empowerment of A.D.C. of Tripura in the line of North Cachar Hills Autonomous Council by way of constitutional amendment and some people demand in the status of Bodo territorial council and also some people demand autonomous state under article 244(A) of the constitution of the India within the territorial boundary of A.D.C. of Tripura. In my opinion, the A.D.C. should be empowered by the constitutional amendment and article 280 of the constitution should be amended and there should be place for A.D.C. like municipalities and Panchayats in recommendation made by the Finance Commission for measures needed to augment the financial position of the A.D.C.

At the same time article 275 of the constitution should be amended and fund from the centre should be directly placed to the A.D.C. instead of present system, which is routed through the state government. In my opinion, this will improve the quality of function of A.D.C. and it can mark its presence in day to day activities in the tribal society, otherwise the concept of autonomous district council enshrined in the constitution will disappear in a long run and without getting alternative recourse, the violent people being confronted with multi-fold adversaries will be engaged in anti-national and other divisive activities. I demand that the existing constitutional system available in sixth schedule should be strengthened by amendment and A.D.C. should be given more legislative administrative and Financial powers. The A.D.C. should also be allowed to constitute police force for its day to day law and order activities. The A.D.C. should not be allowed to be interfered by the state machinery, which under mines the autonomy of the A.D.C. We demand direct representation of the A.D.C. in the planning commission discussion during allotment of fund.

I hope that this will definitely knock to the door of the power house and arrange immediate amendment of the constitution for the welfare of the Tribal people of Tripura.

I conclude,

Thanking you very much

Rabindra Kishore Debbarma

Introduction
Mary Wollstonecraft took England by storm when she published her A Vindication of the Rights of Woman in 1792. Her work was considered radical because she located notions of women’s rights within the context of universal human rights. Within half a century this question of women’s rights assumed centre stage in debates of social reform in both England and in India. It was recognised by social reformers that something needed to be done to improve the condition of women although often not with any notion of gender justice or equality. These debates led to some changes into the situation of women both in England and in India but more importantly it led to a specific social construction of women as more a member of a community than as an individual. This ensured that questions of women’s autonomy were historically to be subsumed within religious and personal law and hardly ever treated as a matter of either individual right or justice.

This paper will address questions of women’s autonomy in India and analyse its location within the legal discourse. Women’s movement has tried to analyse questions of women’s autonomy through exploring women’s position in law. Among other indicators women’s position in society is often analysed through marriage, divorce and property acts. This paper will analyse the evolution of these acts and whether that has led to women’s autonomy or whether that has subsumed questions of autonomy leading to further marginalisation of women in polity. The paper begins with the assumption that location matter and that laws affect different women differently. Yet an understanding of the evolution of laws seems necessary because laws are considered as primary markers of autonomy.

Section One
In the first section a historical overview of the legal evolution of notions of autonomy in India will be discussed.

In 1864 the Indian Marriages Act was enacted but it scrupulously avoided any modification of the Hindu and Muslim personal laws thereby creating procedures for only Christian marriages. Other Acts such as the Hindu Widows Remarriage Act and the Age of Consent Act did effect notions of marriage at least among the Hindus but it made no effort to put issues of marriage within the realm of the civil. The Indian Succession Act of 1865 was one of the first efforts to systematise civil law in India. It declared that no person “shall by marriage acquire any interest in the property of the person that he or she marries,” thereby challenging husbands right over their wives property but it did not stipulate any maintenance for the wives, which would later lead to destitution of many women. Even this Act was not applicable to the Hindus, Muslims or even the Parsis who had a separate legislation for their community.

In the 1850s the first divorce acts came into legal usage in England. Although the bill was introduced because of pressures from women’s groups yet it treated men and women differently as women could obtain divorce only on grounds of aggravated adultery and men needed to prove only simple adultery. The first Indian Divorce Act came into effect in 1869. The underlying reason for the enactment of this act was not to ensure equality of sexes but to make provisions so that marriages legalised in England can be dissolved in India if needed. It needs to be said that notions of equality of sexes had already appeared in political and legal discourses of the time. For example Sir Henry Maine, who was one of the chief architects of these acts, was said to have commented sarcastically of the Parsis partial civil code that allowed their daughters to inherit only one fourth of what they allowed their sons to inherit. However, no effort was made to translate these sentiments into legal provisions for any communities in India.

Legislative Assembly Debates during the first half of the twentieth century also concerned itself with discussions over the position of women. Both during the 1920s and 30s there were heated discussions over the situation of Hindu women in the assembly debates. In 1939 two crucial bills in this regard was introduced. One of these was the “Hindu Women’s Right to Divorce Bill” and the other was the resolution to set up a committee to investigate the position of women under existing laws. Discussions over both these resolutions portrayed how questions of women’s autonomy were addressed. G.V. Deshmukh, who introduced both resolutions, was often at pains to explain that he had consulted the orthodox religious opinion. No one challenged the concept that for any legislation on women’s position in society, the orthodox religious opinion needed to be not just consulted but addressed as well.

Debates over the resolution for appointment of a committee that was meant to investigate the position of women soon changed the terms of reference and became a debate on the formation of a committee that would investigate only the legal position of women. And only Hindu women were to be their focus of investigation. These debates portrayed that any change in the situation of women could only be possible through legal means. That there can be other ways of addressing questions of women’s position in society was never even considered. Also such changes were never considered as part of women’s right. Also right to discuss changes in women’s position hardly ever included women’s own voices but rather was a matter for community leaders to debate upon. Thus in the official discourse women’s autonomy was hardly ever discussed. If at all it was subsumed within questions of legal change. But such changes were imagined after keeping intact the sanctity of marriage, integrity of religion and what was perceived of as the stability of society.

Section Two
Second section will look into how questions of women’s autonomy had appeared in women’s own discourses.

Part of this section will be devoted to what women were saying in their speeches and memoirs on the issue of autonomy. Speeches of women leaders such as Pandita Ramabai, Sarala Devi Chaudhurani, Sarojini Naidu and Rokeya Sakhawat Hussain will be considered. Equally importantly, this section will see how different women’s organisations such as the AIWC had viewed questions of autonomy in different times and perspectives. This section will be based on published sources including women’s own writings published in different journals. Relevant women’s journals, records, and resolutions will be consulted for this section. Women’s attitude towards suffrage will be one of the reference points for understanding their attitude towards autonomy.

Section Three
The third section will deal with post independence legal discourse on questions of women’s rights and how such discourses may have slowly evolved into questions on autonomy.

This section will address legal measures such as the Abducted Person’s Act of 1949 and the two Hindu Marriage Acts and other acts on succession, inheritance and property rights for women. It will address development of personal laws and discuss women’s alienation from land as a result of customary laws and new modes of cultivation and the further impoverishment of different groups of women. It will deal with the question as to how often impoverishment of a group leads to greater impoverishment of women within that group. It will also discuss how the State on the one hand has legislated for the improvement of the situation of women and yet on the other hand has taken away those rights by their reliance on religious dictums. This section will end by addressing two incidents that dramatically brought questions of women’s autonomy to the political fore front. It will discuss UN decade for women and its effects in India. It will also discuss the formation of a committee and its publication of the Towards Equality report. This section will also address the Shah Bano Case and the debate over uniform Civil Code.

Section Four
The fourth section of the essay will deal with the development of women’s movement and how in that context the issue of autonomy became one of representation.

The section will also reflect on how the government dealt with such questions in a framework of decentralisation, leading to the 73rd and 74th Amendment Acts.. It will reflect on the mode of response of the post–colonial State to questions of women’s autonomy. It will discuss the demands of women’s groups placed on the State in the last two decades and the response. It will try to grapple with the question as to whether State responses have enhanced and increased women’s autonomy or such measures have depoliticized the situation by transforming the issue of autonomy from one of justice and rights to one of law and legality. It will also deal with in this context the significance of the way in which autonomy has figured as a result of the Sixth Schedule. For this purpose we will study the impact of the 73rd and 74th amendments in a region where there are autonomous councils such as in Tripura. The two amendments are of particular importance because they signify in a major way the response of the State to demands from below. For this reason we need to explore the effects of these amendments in one or two states and whether that has in any way enhanced women’s autonomy or even brought other issues to the table. By way of concluding the paper will examine the Assembly (selected) and Parliamentary debates on women’s representation in various tiers of legislation and rule. I wish to discuss how the 73rd and 74th amendment may have increased women’s voices in political decision-making in the grass-roots level.

Yet, all these beg inquiry: How much have such legislative measures and the agenda of representation been able to ensure the very survival of women in crisis situations such as in Gujarat? How much have the brutal attacks specifically directed on a community become attacks specifically on women – not just of that community but any woman considered deviant.

A work of this magnitude needs multiple sources. I will look into Legislative Assembly, Constituent Assembly and Parliamentary debates. Newspaper reports will be an important source for the latter period. Other government and non-governmental reports that are in the public domain will also be consulted. I will also interview a number of people both men and women who have dealt with this issue. Other than these secondary sources will also be of particular importance especially writings on land question and questions of women’s representation. I hope to do some fieldwork in Tripura and West Bengal.

I have tried not to give any hypothesis here. Keeping in mind the various complexities involved in the agenda of autonomy. I prefer to examine the material first before generalising anything on this supremely important question of how the principle of autonomy relate to the themes of rights, representation, and identity under specific structures of rule.

Tripura Tribal Area Autonomous District Council at a glance.

• TTADC bill accepted in the state Assembly in 1979
• 1st election under 7th Schedule 1982
• 2nd election under 6th Schedule 1985
• 3rd election 8th July 1990
• 4th election 26th July 1995
• 5th election 30th April 2000

Total Area : 7,13256 square mile (68.90%)

Population : 5,06903 (15.88%)

No. of electoral seat : 28

Reserve for St, SC : 25

General : 3

Nominated : 2

No. of village dev. Committee : 522

No. of elected women in ADC From its inception : -1 (1995)

As in common, primarily ‘Freedom’ or ‘Autonomy’ figured in the struggle of the indigenous people of the country. The erstwhile native state of Tripura may be the only exception. Janasiksha (mass education) was the entire point of their movement for awakening and unionisation and that too in the forties of the last century. When in the neighbourhood intra clan clashes were common place events at that time, the call for mass education by Janashikha Samity a body of the educated and enlightened Tribal Youths, literally shook the whole tribal psyche of the state.

It may be a very interesting subject for the sociologist to explore as to why when a tribal population having % literacy, generated a youth leadership inclined and took to a very modern political and ideological concept of their time i.e. in the forties. The first leaflet they published find a line of Tagore in its heading “Ai sab murha, mlaan mukhey dite hobe bhasha.”

The intense of their dedication perceived from the fact that within the three years of the coming in to being of JSS it could establish and run 350 nos. of primary schools in the most remote areas of the state. And compelled the then feudal ruler to recognise and taken over them.

The organisers of the movement Compelled all the members of the family to go to school. This initiative turned out to be a turning Point in the History of tribal movement of Tripura. This movement gradually made the Tribal People to raise voice of Protest against age old feudalistic repressive system. Gradually the women were also attracted by the modern face of the movement.

This attempt for enlightenment of the poor, ignorant tribal people drew the wrath of the then rulers. In 9th Oct. 1948, Police killed eight Peasants of whom 6 belonged to tribal community. In 9th march 1949 three women laid their lives in the hands of military just because they refused to be the ‘human Conveyance’ of the military Personal.

After Tripura’s formal accession to India (1994, 9th Sept.) state-repression in the hill intensified. Ruling party’s opposition to the communists appeared as synonym to opposition to the Tribal people and their causes.

In 1952, the Influx of refugees rapidly changed the demographic scenario of the state. The question for the safeguard of the Indigenous people came in forefront

In 1954 state reorganisation committee recommended Tripura to be included with Assam state.

In the first general election of 1952 the ruling party could have managed to get only nine seats out of 30 in the T.T.C. They lost all the three seats in parliament. It is most note worthy that elected council were denied to discharge its function democratically. Instead an Advisory body of the defeated members were formed to guide the state Administration.

In 1974, the Tribal reserve covering an area of 2000 sq mile created the erstwhile native king was quashed by the than ruling Congress Party. This generated a total frustration among the indigenous people of the state.

When in 1979, TTADC Bill was passed in the state Assembly, there was no congress representation. Again the largest political party opposed and boycotted the 1st election of the TTADC tooth and nail.

In this backdrop, the movement for Autonomy for the indigenous people has become more consolidated. The demand for the restoration of the erstwhile tribal reserve of the king ultimately developed the movement for self determination. Movement of All Assam Student Union (AASU) encouraged a section of the tribal youths. Demand for driving out the non tribals was raised in Tripura also, which ultimately led to ugly violence and massacre in June 1980. After this, Tripura is in the grip of blood bath and extremism.

Autonomous District Council failed to fulfilled the minimum aspiration of the people. On the contrary, life in the ADC area has been put to a total doldrums. Insecurity of life and livelihood engulfed the society. First, it was the non tribals of some particular areas of TTADC was made to vacate their villages. This made ADC area more remote and isolated. A very lively and thriving Bazar at Jampuijala and Thakarjala has become mostly deserted. Instances are numerous. The system of marketing in this enriched area has completely collapsed. As a result of which the tribal family who got any opportunity and scope left their traditional land. No. of these displaced families can be traced in the most degraded slum areas of the capital.

Philosopher Kant introduces autonomy into the language of moral philosophy. According to him autonomy of the wills means ­ “the facility that the will possesses of being it’s own law giver, of being it self, by it’s own nature, the source and substance of the normal law it self.”

Amartya Sen, Nobel laureate directly links the freedom with self empowerment. According to him the target of development is to crush the sources of ‘dependences’ – poverty and torture, economic exploitation, ignoring welfare, intolerance and undemocratic activity of ‘state’ etc.

So it can be inferred that the question of autonomy is directly related with self determination and more precisely with freedom and self empowerment.

Freedom is always related with self-empowerment. If their rights are infringed, the community launches movement. The initial democratic movement in many times turned into militant movement and then to violent movement. The form of movement of the community depends on the tactics of the state and also the form of people’s aspirations.

The experience of ADC speaks different. Here in Tripura ADC is still a non starter. It is alleged that economic blockade by the state governments are creating hardly for the proper functioning of ADC. But at the same time corruption, lack of dedication and infighting among the leaders of the movement for autonomy is also of mention.

Status of Women
In the inception, when our great constitution makers thought it Prudent to make separate Provision in the constitution and Identity as well as upbringing and welfare of the Tribal people, they incorporated the 6th Schedule covering this aspects of the matters in our constitutions. But what is grossly amiss, is that the woman folks of the clan or tribe did not figure in their thought process at all in embodiment of a overall development of the society.

It is evident that the constitution makers also left the fate of women folks of the tribal society in the four walls of those regressive customary laws. Even after 57 years of independence no genuine voice has been heard as yet from any of the so-called emancipators of the Tribal people about the right of their women in the national perspective.

A view is aired that the tribal women enjoy a higher status than the women of non-tribal societies. Some instances are cited in support of this contention that a tribal women can own property, and in marriage deal share used to get a dictating term about her bride price.

Now, it’s a fact that in the Production system of tribal life the women dominate, the burden of traditional cultivation rest mostly on their toils. Now as the scope of traditional cultivation are becoming harder, the women in Jhum are being reduced to daily labours.

Violent turn of extremist movement and non-functioning of the ADC pushed the women in a most disadvantageous position. They are made to pose themselves as the human shield in front of security personal, but their own security is at stake. One land, extremists generally dictates the terms for the women, while on the other they are the targets of the Security personal.

Because of the extremism social security benefits of rural area are largely affected. For last decade large no. of schools remain closed, because the Teachers can’t go to the rural hill areas. In spite of successive efforts of the government Drop out rate among the students from I-X remain more than 80%. For last five years not a single student can pass the class – x broad exam. In many schools of the area. The situation directly affecting the women, whose movement has become restricted due to lack of security. The curse of displacement has created a situation, which is beyond there capacity to face.

Recommendations:

1. Improve legal system to be more accessible and gender sensitive, especially in cases of sexual abuse.
2. Protect children, especially girl children, from rape and sexual exploitation
3. Collect and provide information on the different dimensions of violence against women in conflict areas.
4. Address the mental and physical heal needs of women in these situations by providing counseling and rehabilitation centres for affected women.
5. Involve women in peace building efforts and post conflict reconstruction.
6. Rehabilitation for the displaced.
7. Suitable resource allocation for loss of livelihoods and property.
8. Ensure education to young women and girls who have been displaced from their villages and who are even more vulnerable and insecure due to conflict situation.
9. Work out economic packages and special schemes for women.

FACT AT A GLANCE (BASED ON 1991 CENSUS)

Tripura State District                  Council Area             Non-District Council Area

01 Total Geographical  –  10491.69 sq. km.-  7132.56 sq. km.-  3359.13 sq. km.

02 Total Forest Area 6061.68 sq. km. 3582.00 sq. km. 2479.68 sq. km.

03 Total Non-Forest Area 4430.01 sq. km. 3550.56 sq. km. 879.45 sq. km.

04 Total Population 27,57,205 8,87,300 18,69,905

05 Total S/T population 8,53,345 6,62,703 1,90,642

06 Total Non S/T population 19,03,860 2,24,597 16,79,263

07 Density of population/sq. km. 63 124 556

Table of Contents of Main Report

Part I

1. Constitutional provisions for Tribal Autonomy
2. Constitutional provisions on Panchayats
3. Salient Features of PESA 1996
4. Jharkhand’s Experience with Panchayati Raj
5. Salient Features of Jharkhand Panchayati Raj Act 2001
6. Jharkhand Specific laws – powers to headmen under tenure acts
7. Lacuna in the Constitution of Jharkhand
8. Wilkinson Rules
9. Powers Under CNTA
10. Powers Under SPTA
11. Legal Challenges to the Jharkhand Panchayati Raj Act 2001

Part II:

1.Experiences with PESA and the traditional structure in practice.

2.Comparing PESA 1996, Jharkhand PRA and existing laws on major aspects

• Displacement and PESA
• Police, POTA and PESA
• PESA/PRA, Tradition and women

Part III:

3. Conclusion

4.0Recommendations

This report examines the Jharkhand Panchayati Raj Act 2001 (henceforth PRA 2001) , with a special focus on its provisions for scheduled areas. It is difficult to assess the functioning of the law as it has yet to be implemented . However, this report attempts to analyse the implications of the law, especially the way it contradicts various constitutional provisions and existing laws specific to Jharkhand, such as the Chotangapur Tenancy Act, the Santhal Parganas Tenancy Act, the Wilkinson Rules, and the Santhal Police Rules of 1856, also known as the Yule Rules.

Constitutional provisions for tribal autonomy

(Part X) Article 244: This deals with the administration of Scheduled Areas and Tribal Areas, which covers the operation of the 5th Schedule. In practice, experience with the 5th Schedule has been very disappointing. The Tribes Advisory Councils have hardly any teeth, laws applicable to the rest of the state are routinely extended to scheduled areas, the Governor rarely exercises the powers vested in him/her, and the overall result is there for people to see in the miserable human development indicators for adivasis.

Part IX (Panchayats): Article 243 B makes it mandatory for every state to constitute panchayats at the village, intermediate and district levels. However, an exception is made for scheduled areas in Article 243 M which notes that parliament can modify or pass new laws on panchayats for scheduled areas. Parliament passed the Provisions of the Panchayats (Extension to the Scheduled Areas) Act (PESA) on 24 December 1996.

Salient Features of PESA 1996

Two critical clauses in PESA, of a general nature are clauses 4 (a) and (d). PESA (Clause 4) states that “Notwithstanding anything contained under Part IX of the Constitution, the Legislature of a State shall not make any law under that Part which is inconsistent with any of the following features, a.) a State legislation on the Panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources…d.) every Gram sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution.

There are several problems with PESA:

• There is no effective mechanism for implementing these two clauses.
• The general laws that violate tribal customary law are not laws relating to panchayats per se, but include IPC and CrPC.
• PESA does not specify that the Gram Sabha’s competence to manage its customary resources overrides the authority of line departments like the forest or irrigation departments. Inevitably, the interpretation of the more powerful departments has continued to prevail. Forest officers routinely assert that PESA does not apply to reserved forests even if they fall within the village’s customary boundary. Police officers refuse to acknowledge the community’s right of customary dispute resolution when they intervene in village disputes.
• PESA is silent on what happens if the customary law or traditional mode of dispute resolution (e.g. witch killings) violates a person’s citizenship rights under the constitution. In fact, by not building on some of the existing laws within Jharkhand and elsewhere which specify the category of offences which can be tried by customary law or by providing an option for people to turn to courts, PESA runs the risk of actually imposing and making rigid a feudal system, which did not exist before.
• The Act is internally contradictory, by providing both for elections to the village panchayats (Clauses 4 c & g) and upholding custom, which involves non elected headmen at the village and pargana level. In fact, the legal challenges to PESA within Jharkhand (Champia vs State of Jharkhand, Adivasi Aatu Boisi vs State of Jharkhand), which try to invoke the central PESA against the state act, and argue that there should be no elections, ignore the weakness of the central act itself on this point. As far as elections are concerned, the Jharkhand PRA 2001 merely reproduces this feature of PESA.
• In an area which is truly critical – land acquisition for development projects, and which has been repeatedly shown to be a major cause of impoverishment for tribals, PESA simply gives them consultation rights. Consultation amounts to very little and communities have no easily accessible remedies if their objections are overruled.
• Although PESA gives the gram sabha the right to prevent land alienation in scheduled areas and restore alienated land to scheduled tribes, this is restricted to the alienation of private land to private parties. The appropriation of common or private land by the state (whether through land acquisition or settlement procedures or other means) does not figure anywhere, although this is an equally common problem.
• Since the second part of the Bhuria Committee proposals were not implemented, PESA is not applicable to municipal limits within scheduled areas. Although the government has to get a village’s agreement (it is not clear whether villagers can say no) to include it within a municipality, given the growing urbanization in scheduled areas, and the swallowing of whole villages, this takes away rights from a large chunk of people who might be thought to need them most.

On the positive front, PESA gives the Gram Sabhas (or panchayat at the appropriate level) a number of specific powers: to approve schemes for social development, to identify beneficiaries, to certify the utilisation of funds by the panchayat, to recommend prospecting licenses or leases for minor minerals, the power to manage minor water bodies, village markets, enforce prohibition. Three significant powers are the ownership of minor forest produce, the power to prevent land alienation and restore land to scheduled tribes, and the power to control money lending.

Problems with the Jharkhand Panchayati Raj Act 2001
(as related to gram sabhas and gram panchayats)

1. There is a lack of clarity on the relation between the gram sabha and the gram panchayat in terms of funds. If funds come to the gram panchayat, how will they be distributed between the various gram sabhas. There is no reason why funds should not come directly to the gram sabha.
2. A similar lack of clarity relates to the powers of the gram sabhas and their traditional heads (Sec 8.3) compared to the mukhia of the gram panchayat. Once there are direct elections to the mukhia post, and it is he/she who controls development funds, will the munda or pradan still command any respect?
3. What will be the relation between the ward member and the munda/pradan?
4. While the PRA apparently gives the gram panchayat more development powers than the mundas and pradans had, most of these are wishful thinking and not backed up by finances, or by any justiciable clause. The powers given to mundas/pradans etc. are at least enshrined in the CNTA/SPTA whereas the panchayat has to obey orders issued by the government from time to time.
5. One needs a careful comparison of the powers enjoyed by the munda/pradan with those of the mukhia, the gram sabha and the gram panchayat.
6. The Jharkhand Act has been the subject of both political and legal challenges. The problem appears to be not so much that it contradicts central PESA but is silent on critical issues, like the gram sabha’s right to be consulted before land acquisition, or the ownership of MFP by the gram sabha.
7. Elections have not been held under this act to date, even in non-scheduled areas.

Jharkhand Specific laws – powers to headmen under tenure acts

The following laws specific to Jharkhand already provide wide ranging powers for self governance.

♦ Bengal Regulation XIII of 1833: First set up Jharkhand as an area outside the operation of general laws.

♦ This state of exceptionalism was continued in the Scheduled Districts Act (Act XIV) of 1874.

♦ Wilkinson Rules (Administration of Civil Justice) – Kolhan: Under this civil disputes are referred to panchayats and the Mundas and Mankis are given certain rights:

• To settle wastes
• To collect revenue
• To arrange for and maintain natural irrigation sources and fallows
• To act as police head for his village and maintain law and order
• To engage in social forestry; to protect PF and RF

While the rights and duties given in the hukuknama are wide ranging, in practice, many of these powers have been taken over by the government. For instance, the Revenue powers of the Munda/Mankis – the right to settle wastes and collect rents – have been largely taken over by the Circle officers and karmacharis. Secondly, the Kolhan was meant to be a non-police area. The Munda was equivalent to a head constable for his village, a Manki equivalent to a sub-inspector of police, and the Dakua to an ordinary constable. However, the number of police stations has now been expanded, and not only are the police exercising all their regular powers but also greatly expanded powers through the use of POTA.

In the pre-colonial period, the Mundas and Mankis were central to the local political structure – it was this system that enabled resistance to the British. Through the hukuknamas, they were co-opted into the colonial administrative structure, and were reduced to administrative officials appointed by the government. In the post-colonial period, their political and administrative role has been further marginalized till they have been reduced to largely ceremonial figureheads.

Activists in Jharkhand fear that with the holding of panchayat elections, even the lingering powers of the Mundas and Mankis which have survived will completely disappear. They cite the experience of the panchayat elections held in the late 1970s, following which the elected mukhia gained at the expense of the munda. It is true that under PRA 2001 the gram sabha has more powers now and the meetings are presided over by the traditional head and not the mukhia, yet the likelihood of one system destroying the other remains. Panchayat elections held under the current party system, in which money has a decisive sway, is unlikely to really throw up candidates who will reflect popular aspirations.

Powers given under CNTA

The rights and obligations of village headmen, variously known as Pradhans, Manjhis, Mandals, etc., are part of the record of rights that the state government is obliged to prepare under Chapter XV, Sec 127 of the CNTA. In addition to their revenue responsibilities the village headmen are also responsible for mediating between the village and the government in a number of other respects. For instance, the village headman has to maintain law and order in the village, report offences and bad characters to the police, look after officials on tour, and maintain tanks, forests and other resources. The office of the Khuntkatti headman is hereditary, while that of the non khuntkatti headman is so only if this is specifically mentioned in the headman’s patta.

However, unlike the pattas given to Ho mankis under the Wilkinson rules and the powers given to parganaits under the Santhal Parganas Police rules, there seems to be no official recognition given to the supra-village organization (parha panchayat) among the Mundas and Oraons.

Powers under SPTA

In the Santhal Parganas, the majhis (pradans) and the parganaits are recognized by the government, and have certain rights and duties: to help the government, maintain community property like forests. Under the 1856 Yule Rules they also had police powers, which the government now treats as defunct.

The new Jharkhand Panchayati Raj Act, rather than building upon and expanding these existing provisions relating to the appointment of village officials, bypasses them altogether in favour of an elected mukhia, and vague powers of dispute resolution. A case filed before the Ranchi High Court by Saathee, an NGO working in Godda seeks to restore these powers which have become defunct, but have not been repealed.

Need to synchronise Jharkhand specific laws and PRA

Certain rights given to the village communities in Khatian Part II of the settlement to manage their forests or to settle wastes are far more extensive than those provided under PESA. In other respects, e.g. by providing for customary modes of dispute resolution, PESA/Jharkhand PRA 2001 potentially give the villages more freedom than the limited police powers given under the Wilkinson or Yule rules. But this power will remain meaningless unless accepted by the police or the powers of the police in PESA areas are clearly repealed. On the other hand, the Wilkinson Rules give the manki and munda the responsibility of maintaining law and order which is a broader concept than mere dispute resolution. PRA 2001 has the advantage of providing the gram sabha with several powers related to the monitoring and implementation of government schemes. All these laws need to be synchronized to ensure the maximum effective power to villagers.

Part II: Experiences with PESA and the traditional structure in practice.

Even prior to the enactment of PESA in 1996, several groups across the country had begun demanding some form of self rule. The enactment of PESA in 1996 gave a huge fillip to such activities, especially clause 4d which makes the gram sabha ‘competent’ to manage its resources etc. What appears to be paramount today is the struggle over interpretation of laws, particularly PESA. While the Jharkhand government has tried to stick to a minimalist interpretation by not including several PESA clauses in PRA 2001 and not amending parallel legislation for ensuring compatibility, NGOs, peoples movements and others have tried to use and reinterpret PESA to assert their legitimate rights to self governance. In many cases, NGOs and others have also used PESA to formalize traditional village structures. In most cases, traditional headmen appear to be ‘elected’ to the post of gram sabha adhyaksh, but since the panchayats have not yet been set up, it is unclear as to what their relationship will be with the elected mukhia. The procedures of the gram sabhas now appear to be undergoing some bureaucratisation – with local decisions now being formally written down in registers. While these gram sabhas continue to deal with traditional village decisions such as the dates of sowing and festivals, fines for caste offences etc., many of them have also begun to intervene in the implementation of government schemes dealing with poverty alleviation. But in many villages where there are no people’s movements or NGOs, awareness of PESA is non-existent.

According to the accounts of various groups, while traditional political structures at the village level (munda, pradan etc.) may be undergoing some revitalization, the supra-village level (parha, pir, pargana) (which is not recognized by either PESA or Jharkhand PRA) is gradually becoming defunct. These institutions are still capable of becoming effective units of self governance at a supra-village level, and are more rooted in local custom than block level panchayat samitis but require political will for being supported.

On the negative side, even in these reform and revival attempts there are very few women leaders.

What is equally striking is the administration’s refusal to recognize any of these gram sabhas – at least till state conducted elections are over, and instead to continue with their practice of the panchayat sachiv calling aam sabhas to get schemes passed. Proponents of elections argue that at least this would mean that the gram sabhas they have already formed could begin functioning officially. What is of great concern, however, is the government’s propensity to set up gram sabhas which suit them – by buying off a few influential villages and getting them to sign gram sabha declarations supporting projects which cause displacement. The very concept of community assent is being subverted for achieving the government’s ends.

Comparing PESA 1996, Jharkhand PRA 2001 and existing laws on major aspects

While PESA/PRA is an advantage over the existing situation in terms of giving villagers control over development schemes it fails quite seriously on other fronts. If one were to pick just three arenas which have been the bane of tribal communities over the last two hundred years, one would have to look at the activities of the police, the forest department and land acquisition. Neither the traditional tenure acts nor the new panchayat acts give the local communities appropriate and sufficient powers to offset state interventions in these areas. Genuine self governance would mean transforming the structures of the state – especially the police and forest departments more broadly. The problem, moreover, is that the state routinely violates its own laws.

PESA, PRA and Women

Perhaps the greatest challenge for local autonomy is the involvement of women in the panchayat system. Women are not represented in the traditional village councils, and attend only if they are involved in a particular case. There are few women mundas or majhis though the concept is not unknown. The gram sabhas set up by most NGOs have also not achieved anything by way of gender parity, since in most cases the traditional mundas/pradans get elected. In this respect, the Jharkhand PRA 2001 is an improvement: it mandates that the quorum in any gram sabha meeting must include at least one-third women, and one third seats are reserved for women in the gram panchayat. However, what powers they get in practice still remains to be seen, as the experience of women in panchayats in other states has been a mixed one.

While lack of political representation is an issue, women are being disempowered in other ways, for instance in the highlighting of tribal women’s marriages with non tribals as a major cause of land alienation, and the consequent backlash against giving women land titles. While the sexual and economic exploitation of adivasi and dalit women is a problem that must be fought against, it should not be made an excuse for the further entrenchment of patriarchal attitudes within the adivasi community.

Conclusion

The situation in Jharkhand raises several questions about the nature of democracy and autonomy, as expressed through local self governance structures. There can be some debate over the role of traditional structures involving hereditary, non-elected headmen or chiefs in a democratic set up. To the extent that only certain families (usually the founding lineage) have the right to become the munda/pradan etc, the system may appear anachronistic and feudal, especially for women, who have traditionally been excluded from political power. On the other hand, the failure of the electoral system to achieve true democracy – owing to the crucial role played by money among other things, means that many people have begun to see their traditional institutions as the only guarantors of any kind of democracy. It is also true that by and large the power of the traditional headman was limited by the absence of sharp economic differentiation and the headman was subject to the customary law of the community. In that sense, powers given to the munda to maintain law and order or to settle wastes were really powers vested in the community. In the current situation of growing differentiation and the fact that many Santhal Pradans have themselves become money lenders, and are giving mining leases or settling outsiders on village wastes, this may no longer be true. Yet, the traditional system has the advantage of familiarity and long usage – most people know their village headmen, as against the elected mukhiya of a gram panchayat which is much larger.

Perhaps the best bet in the current system are the ongoing efforts to reform the traditional system from within, including involving women in the everyday affairs of the panchayats. According to activists, the demand to continue with the traditional munda must be seen in conjunction with the other rights given by PESA/PRA. By giving the gram sabha control over different economic spheres – e.g the management of natural resources, and identification of beneficiaries for development schemes, it is possible to avert the danger of the munda turning autocratic, as well as reverse the trend of the traditional structure being seen as concerned only with social offences. The traditional structures need to be restored as units of social, political and economic self governance.

In an ideal system of course, the village munda would be an elected person – but elected on the strength of her or his character and commitment rather than party affiliation or money. This would mean connecting the panchayats to a broader social movement.

At any rate, the very size of the gram panchayat (5000 people) suggests its incompatibility with decentralized self governance. There is no reason why funds cannot come directly from the block office to the gram sabha as is happening under the current system in the absence of panchayat elections.

Care must also be taken when setting up a system of participatory democracy to look after the needs of voiceless elements, particularly women and migrants. The seasonal migration from Santhal Parganas and elsewhere could result in usurpation of control over gram sabha or gram panchayat decisions by those who can afford to stay in the village.

Besides improving or crafting new panchayat institutions, it is equally essential to transform the major departments that affect people’s everyday lives: the police, the forest department, the revenue department, etc. In many places, only the coercive aspect of the state is visible, and not its developmental aspects. This needs to be reversed.

Finally, the state government needs to shift its focus from promising domicile in class three and four jobs (increasingly irrelevant in a situation of growing privatization) to granting genuine domicile or rights to local people in natural resource management. People should be consulted on their vision of development, their land should not be acquired without their prior and informed consent (instead of mere consultation), they should have shares in any project that comes up on their land with their land ownership remaining intact, and they must be asked to move only if rehabilitation has been satisfactorily completed.

Part III Recommendations

General

1. Redraw the boundaries of Jharkhand state to include greater Jharkhand and exclude non-tribal areas.

2. Reorganize the police, forest and revenue departments – changing both fundamental laws and the structure, include more adivasi and dalit personnel at all levels

PESA 1996

1. Remove the contradictions within PESA and Jharkhand’s PRA with respect to the role that should be given to custom (which includes the manki-munda system) and whether elections should be held, after widespread discussion.

2. Sort out the other problems in PESA 1996 mentioned in the report. We especially need to clarify the superiority of PESA and State PESA Acts over existing Acts with contrary provisions, and minimize the bureaucracy’s discretion for interpretation.

3. Provide widespread publicity in local languages to both the Central Act and the relevant state Act, through the print and electronic media, through cultural mechanisms like street plays, puppetry etc.. Traditional adivasi leaders should be asked to disseminate information through traditional councils. Booklets should be printed in adivasi languages providing the import of the law in simple understandable terms and copies distributed to every high school and college in scheduled areas, in addition to the panchayats. Provisions of the Act should be included in the educational curriculum at different levels.

Jharkhand PRA 2001

1. Hold a widespread process of consultation as to what shape the PRA should take – whether it should replicate the traditional munda-manki (village, pir) structure or rely on elections and the three tier system.

2. Even within the existing system, clarify the relationship between gram sabhas and their traditional heads (Sec 8.3) and the mukhia of the gram panchayat.

3. Do away with the gram panchayat for funding purposes and transfer funds directly to the gram sabha

4. Amend Jharkhand’s PRA in conformity with PESA and provide missing clauses (e.g. on ownership of minor forest produce)

5. Hold elections to panchayats in non-scheduled areas.

6. Either amend or make inapplicable to Schedule V areas, a host of overlapping laws with contradictory provisions such as the Land Acquisition Act, Excise Act, Indian Forest Act etc.

7. Develop more detailed procedures to operationalise the various powers of the gram sabha under PESA.

PRA and Existing Tenure Laws

1. Where existing tenure laws like the Wilkinson rules or the Yule Rules give headmen or gram sabhas greater powers than those given to them under PRA, these powers must be incorporated into the PRA.

PESA, PRA and Women

1. With respect to the charge that giving women land rights would lead to alienation of community land if women marry outside the community, we need a good study of how many such intermarriages are taking place and their effect on community land ownership and land alienation.

2. While women’s land rights might be best guaranteed under a system of collective ownership, in the face of growing privatization, there appears to be no alternative to joint pattas at least as a starting point.

3. Encourage the participation of women in panchayats, whether traditional or formal.

While there can be no doubt about the efficacy of autonomy without substantial access to resources (and by resources I include both material as well as non-material resources), the two do not necessarily have a happy fit. Autonomy can be broadly seen as a discourse that suggests the weakening of centralized control, of the de-centralisation of power and its diffusion among a greater number of people who are otherwise erased or elided from its hallowed precincts. Resources essentially generate an opposite discourse.

Any resource is scarce by nature and therefore cannot be distributed to all who want to access them equally or have a share of the pie in whatever proportion they deem fit. Resources therefore generate contests (who gets what, when and how) and are usually cornered by those who have the most power. A consequence of this is the centralization of resources (for example the transformation of resource into property) and the closure of access leading to a great number of problems, which would not allow resource to be treated simply as an object of utility. In other words resources pull in the opposite direction of autonomy and neither law nor custom or even force provides a final solution to the tussle between the centrifugal and centripetal forces.

I would argue that while the rhetoric of autonomy is seen as necessary for democracy to become substantiated at the local level a substantiated autonomous body may prove to be subversive of larger narratives of state, nation, party and so forth. For example panchayats in West Bengal have been projected as the institutionalised form of decentralised power in the state and many (perhaps not without some reason) have seen the experiment as one of the better governance technology in independent India. Yet panchayats, or more precisely their operation in the party (CPIM) literature is largely a matter of ‘parichalana’ – a term in Bengali that means guidance or direction. In other words while it is the panchayat which is formally to be a body that gives directives it is in itself a body that is to be directed. This direction undoubtedly would come from a certain political perspective, whose discursive contours would be fixed far away from the local. The CPI(M) state committee explains panchayats as such:

This does not mean acting at will. It means activation of panchayats in accordance with the principles and ideals of the party. … We need to activate our activists and the masses for carrying out our decisions. (Emphasis added) The document goes on further to add that ‘panchayat activities should be conducted in such a way that they conform to the basic goals of the party’.

Thus local initiatives are formally subsumed within the larger agenda of politics and determined i.e., controlled or sought to be controlled from the ‘centre’. This does violence to the idea of local space as an agent but within the rationale of a mass based political party system the idea of autonomy becomes problematic. I do not want to deny the. local that underpins very many political activities at the village level. Political anthropology does show the salient presence of the local but this presence is undoubtedly a cause of concern, it has to be controlled and disciplined, and therefore structurally related to a greater space as functional cob in the governance wheel.

In practice this means that panchayats are turned into mere delivery systems at two distinct but overlapping levels: one which is political and the other economic. At the political level the local body is supposed to disseminate the discourses of the centre and thereby create a link between the local and its other. At the economic level the local bodies canalise funds allocated at budget meetings decided at the centre. Political economists who have closely interrogated the workings of the panchayats in terms of fiscal relations that are extant have an interesting tale to narrate. Their findings suggest a financially hamstrung institution that is perpetually in need for fiscal support from the outside. Panchayats depend completely on the central and state governments for funds and they raise very negligible funds. The village councils do not have incentives to raise funds on their own and even less incentive to decide on social returns from funds spent in village work. In West Bengal devolution of funds from the state govt. to the local bodies is less than in Kerala. Village councils in West Bengal raise on an average 2 to 4% of the budgetary requirement. Funds raised by gram panchayats are only 8% of its income. In contrast funds from the central govt. is 31 % for all types of infrastructural work and from the state govt. the operating expenses for a GP is 33% of the total requirement annually.

An interrogation of the role of the panchayats would perhaps help us to understand the problem better. The panchayats usually play the role of the deliverer of farm inputs and as facilitator and implementer of poverty alleviation schemes. This is a vital role to perform in the distribution and access to resources that are available at the village / local level. But then this role is restrictive in so far as it becomes a source of largesse, which as we have seen is dependent on budgetary constraints of a different order. For example panchayats are mainly responsible for the selection of beneficiaries of credit under the IRDP programme, agricultural minikits as well as employment generation programmes such as the Jawahar Rojgar Yojana (JRY). .

The problem with this system is that resources meant for the local administration is always delivered as allocation, which implies two things: one that it is dependent on a hierarchy of officials who make up the budgetary plans and secondly that it is vulnerable to political partisanship by which I mean that considerations other than need would act as constraints. This manner of providing access to resources does not bypass the concept of a top down approach, which one must presume must be the very raison d’ etre of having local bodies in charge of governance. The preponderance of the centralised bureaucracy also does violence to the concept of autonomy in relation to resource raising activities as most of the grants are tied down to specific programmes, which leaves very little room for flexibility at the level of the local body. For example the panchayats would find it extremely difficult to move funds earmarked for one particular sector on to another sector, which may according to its perception demand more attention. The West Bengal Human Development Report 2004 says (ch.2) that panchayats have played an important role in identifying beneficiaries for access to resources and ‘have helped to augment rural incomes’.

As with all governance discourse autonomy as understood within the institutions of the local are linked, apart from the political and the economic, through law. There is a feeling that progressive legislation would smoothen the rough edges of this contentious debate and to that end in West Bengal the elected Sabhadhipati of the Zilla Parishad was made the head of the executive in the district, bypassing the District Magistrate, who from colonial times had been entrusted with the responsibility. However, the Government of West Bengal itself concedes that this position of eminence is not reflected in the financial and account rues that have been framed. The Go WB HDR 2004 says that ‘this has meant that instead of the power of the bureaucracy being curbed and the controlling powers of the panchayat and its elected representatives being established, there could be a counter tendency of strengthening the bureaucracy’. They continue further to add that the DM, SDO and the BDO continue to be controlling authorities with ‘negative implications for both the capability of the panchayat and its accountability to the local people…’

More damning is the admission that unlike Kerala there are no systematic attempt to mobilise locally available technical expertise and that after 1988 ‘no new measures was taken in terms of strengthening’ the process of a transparent financial devolution. District level planning has suffered a setback with the consequence that ‘decentralised planning so far has been (restricted to) integration or coordination of district specific schemes’ of the government or a sponsorer.

To sum up I would like to reiterate that the above brief overview of the problem posed shows the conceptual tension between the efforts of autonomy in terms of efforts at finding adequate space in which to make viable the demands and aspirations of the local and the inherent centralising tendency of resource allocation and sourcing that are increasingly linked to the wider structures of governance and economy.

The issue of resources are so centrally linked to India’s autonomous arrangement experiments that it almost seems as if the control and use of resources are the only factor that explains the success and failures of such arrangements. In discussions on the existing autonomy arrangements, practitioners and exponents of autonomy regimes claim that it is the lack of resources that define the arrangements, while critics often point towards the fact that the autonomous bodies are recipients of central funds, some of it bordering on largesse and therefore have little right to complain. In the case of the district councils in Assam, both positions are voiced with equal ardour. What one tends to miss out in these fractious debates is the fact that the geographical territories that enjoy autonomous council status once formed an integral part of trade routes and were regions that enjoyed great access to wealth and riches in the past.

Even a cursory look at the geography of Northeastern India shows that the region forms a part of a great geographical knot of valleys and hills fed by rivers- starting from the Mekong in the east to the Luit (Brahmaputra) in the west. Historically and culturally, the Northeast appears as the cusp, or the linking region that connected labour rich kingdoms and/ or chiefdoms of Inner Asia, South Asia and Southeast Asia. The region was inhabited by migrating ethnic groups, as well as settled peoples in the valleys. The relationship between valley and hill was marked by both conflict and cooperation. Indeed, scholars like James Scott have argued that the mutual dependence of the hills and valleys in a crucial variable that defines social relations in the region. These social relations allude to the scarcity of labour in the hills and to the institutionalisation of systems of barter and kinship. The posa (corvee labour) system of the Ahoms in Assam that encouraged ritual bonded labour and the frequent references to raids by people from the hills to “kidnap” plainsmen, point towards the fact that rather than control vast swathes of territory, pre-colonial structures (of control) were primarily targeted at regulating labour.

The colonial experience altered this relationship. It altered for example the established lifeways that linked up to lucrative trade routes; the relationships between hills and valleys and so on. Colonial capital saw the hills of the region as the natural boundaries between the enterprises in the valleys and the regions administered by other powers. It was during this period in the nineteenth century that laws restricting the movement of people from the hills to the plains were formulated. The acquired knowledge that hill-people raided the plains for labour and surplus during periods of scarcity (in the hills), coupled with a nervous disorder to protect the investment of labour and capital in the tea plantations (in the valley and foothills) led to a series of enactments that prevented hill- valley interaction. “Excluded areas”, “backward areas” and so on became the administrative equivalent of fences for peoples and economies. The overriding concern of the period, as one may understand it after reading into the enactments, was to prevent the people of the hills coming down to disrupt the “vulnerable” estates. This predilection gave birth to bodies such as the Cachar Levy, that later transformed (or mutated) into the Assam Rifles, whose sole purpose was to ensure that the fences were seldom broken by unruly tribesmen.

This colonial practice underwent subtle changes in the twentieth century. The unbridled settlement of cultivable lands and movement of people from the densely populated parts of the sub-continent induced another series of enactments based on the older ones. These laws were essentially meant to prevent the unchecked expansion of “land hungry” peasants into the hills. What it did manage to do however, was to block the routes and surgically divide communities across several political borders. Hence, the Karbi people today are thought of as being autochthons of Karbi Anglong only and one tends to forget that they are spread across the neighbouring states and nations as well. Similarly, the Boro community are thought to be a minority within the Boro Territorial Autonomous District, but they actually spread over a much larger area. This creates an effect whereby present territories are posited as “best known” territory for the autonomous arrangement/ regime and all subsequent efforts to establish control over resources seen as a symptom of greed of leaders of the autonomy regimes. In truth, there is a great disconnect between the history of the territory and its peoples (as expressed in its myths and lifeways) and the autonomous council and its subjects (as expressed in those who constantly demand access to resources that do not “seem to” rightfully belong to them).

One of the most tragic fallouts of the colonial experience has been the acceptance of arbitrary boundaries as the accepted ones for peoples of different communities. In the Northeast, cartographical surgeries have left territorial autonomy regimes in the worst possible position both economically and socio-politically. On the one hand, truncated areas of control have left the autonomy regimes’ without wealth producing capacities while on the other, control over resources has remained one of the central issues that determine the course of ethnic relations within the territorial area of the autonomous regime. Very often, these relations are marked by serious competition, even violence. Hence, when the issue of resources do come up for public and political scrutiny, autonomy arrangements are often seen as centres of greed and avarice where undeserving subjects claim more than their share of the collective pie. The structure of dependence that is built into the relationship between the autonomy regime and the state authorities also add to the paucity of imaginative ways to address the issue of resources and autonomy arrangements. The powers of the autonomous councils in Assam are in fact seen to flow from the Centre and the course of their disbursement only adds to the dependence of the autonomy arrangement on the Centre. The issue of fiscal matters of the autonomous council, under article 280 of the Indian Constitution, is a case at point. It increases the dependence of the autonomous council on the “largesse” of the Centre. Where autonomy ought to have addressed the historical causes of the impoverishment of the region, it instead reduces the autonomous council to an entity akin to a municipality seeking funds from a larger authority.

Resources and autonomy arrangements somehow seem to have an umbilical cord that leaves many stranded on two sides of a table. One has legions of cynics that cite preferential treatment and pampering of the autonomous arrangements. The other side has recalcitrant practitioners who claim that they have been given the short shrift of the fiscal stick. A way out of the conundrum has to take into consideration the longer history of the region and the political geography within which social and political relations embedded. This would further entail interrogating the construction of “frontiers” during the colonial period and looking for solutions in the re-invention and re-discovery of the lifeways that alluded to wider, perhaps more autonomous ways of activating political and economic agency.

Autonomy debate all over the world today seems to be passing through a great transition. The hitherto predominant way of defining autonomy in terms of a given set of principles that in turn lends to it, its precise form – the ‘modular form’ of sovereign nationhood as it is often said, appears to be inadequate in many respects. The new principles are indistinct; the emergent forms of autonomy are yet to take clear shape. The first part of this note concentrates on a reexamination of the hitherto predominant way, while the second part proposes to take a fresh look at the problem of autonomy.

I

Autonomy is deployed as a strategy in order to address a dilemma that to my mind is implicated in the very claim of democratic right to self-determination. The dilemma in short is: while democracy imposes on the modern state the obligation of representing the community of people (‘nation’) enclosed in it, it also at the same time, encourages many communities — excluded from or even refusing to identify with it, to demand and mobilize for sovereign statehood. The democratic right to self-determination ironically works against the order of democratic states. Thus, autonomy is an arrangement or more aptly a variety of them, that seeks to protect the sanctity of the existing order of democratic states without violently jeopardizing the equally democratic aspirations for self-determination germinating within them. A very recently published book for example points out how ‘home rule’ could prove to be ‘satisfactory’ not only to those who demand secession and independence but also to those who are apprehensive of dismemberment of the existing order of states. Autonomy in short is located within the terrain of state’s institutions and practices.

This is how autonomy demands are subjected to the principles of existing nations and states. Two of these principles may briefly be mentioned in this context: First, the demand for autonomy cannot be expressed in purely ethnic or ethnically exclusivist terms. The demand in other words must reflect the coming into being of a coalition of ethnic communities. This underlying social coalition is considered as a tribute to the principle of indivisibility of state sovereignty. Thus the Khalistan demand according to a Constitutional commentator, is detrimental to the sovereignty and integrity of India because “had it been a mere agitation for wresting greater autonomy for the Punjabi-speaking State of Punjab, the Akali leaders should have sought to carry Punjabi-speaking Hindus with them”. Any attempt at dividing sovereignty along ethnic lines is a contradiction in terms. The heart of sovereignty rests with the social coalition of relevant ethnic communities. Secondly, autonomy can never be claimed as a non-negotiable right. It is always to be tempered with such other considerations as, population ratio, contiguity, national security etc. Some of these considerations for example are rather ambiguously laid down in the report of the States’ Reorganization Commission (1955). While one’s membership to the nation entitles one to certain theoretically non-negotiable and ‘fundamental rights’, one’s membership to an ethnic community correspondingly does not entitle one to any such right. Thus, the communities – national and ethnic, are hierarchized in state’s scheme of rights.

The principles are aimed at containing autonomy within its precise form – the ‘modular form’ of nationhood. It is by way of being governed by these principles that autonomy is said to acquire its form. The social coalition of relevant communities and hierarchy of rights serve as principles not only of sovereignty but also of nation. It shows how nation is privileged over ethnicity, sovereignty over autonomy. The nation is sovereign and ethnicity can only be autonomous. The connection between nation and sovereignty in a country like, India is rather complex. Sovereignty is not extrinsic to the nation so that it can subsequently pertain to it; it constitutes the nation. The nation is not sovereign; the sovereign is the nation.

II

While the above has been more or less the predominant way of defining autonomy explaining in a large measure, autonomy experiences in many parts of the world, I propose to track autonomy beyond the given set of principles and its so-called ‘modular form’. Autonomy therefore may be defined as difference from the nation-form governed by the given set of principles. The experiments with autonomy are not necessarily or for that matter, cannot be referred back to the principles bringing the nation-form into existence. The principles resemble what Ernest Gellner would have called, ‘Hidden Deity’ — too high to take notice of the everyday affairs of state and obviously the violations of these principles that may be implicit in the conduct of these everyday affairs.

The greatest challenge that autonomy faces in today’s world is emancipate itself from the given set of principles and the ‘modular form’ that it is held captive to and the states seem to strive hard for coming to terms with this new reality. We propose to locate autonomy in a space that develops against the very grain of its principles, as the underside of its constitutionality. The relation of this space to the constitutionality of the state is tenuous, if not opposite. The talks being held with the rebel groups without any preconditions from the Indian side more often than outside India do not make it obligatory on the part of these groups to subscribe to the Constitution in order to arrive at any negotiated settlement. Experimenting with autonomy may eventually push the state to sever the connection between sovereignty and nationhood in hitherto unknown ways.

The rise of public and scholarly interest in globalisation and politics is a new phenomenon. Glyn and Sutcliffe have defined globalisation as “the idea that the world is now really a single economy in the macroeconomic sense.” That means that the main determinants of income and employment can now only be understood at a global and no longer a national level. To others, globalisation implies the processes through which the world is becoming a single space. This idea of a single space in which global structures and processes simply have the power to mend individual subjects, communities and localities, as well as whole cultures.

Everyone engaged with the new politics of globalisation are actually ‘for’ some version of a preferred globalisation or some ‘alternative globalisation’. Therefore, the World Social Forum raises a slogan that “Another World is Possible.” Interestingly enough, even the resistance to neo-liberal capitalist globalisation is largely becoming a global social movement for ‘another globalisation’, one not based on narrow corporate interests and leadership, but rather a globalisation reflecting the broad popular interest and based on values of social justice, equality, and participatory democracy. Therefore, the politics of resistance to neo-liberal globalisation (Gills 2000) is perhaps not best characterized as a ‘backlash’ (Broad 2002), but rather has a historical set of social forces engendered by the conditions of contemporary global capitalism seeking to transform social relations and the global system.

But, again among these somewhat new social forces, there are differences with regard to the analysis of the historical situation, the emphasis on one or another aspect of global social problems, and also with regard to strategies for overcoming the inadequacies of the current global social order. Some emphasise local self-reliance while others focus on the reform or transformation of global institutions. (Christopher Chase-Dunn, “Understanding Waves of Globalization and Resistance in the Capitalist World System”, Social Movements and Critical Global(ization) Studies). In this paper, we shall, however, primarily concentrate on the question of autonomy in the context of recent waves of globalisation.

I

It may be recalled that, during different historical periods of globalisation, the density of social relationships across borders varied enormously. By the end of the 20th century, the burgeoning capacity of electronic communications has significantly compress both time and space. Changes in technology have allowed production and culture to be divorced from place. The impact of global ideologies on subjects such as the environment and human rights and the recent seismic shifts in the world’s geopolitical balance have arguably made the world globalised like never before.

This latest wave of globalisation has problematised key modern concepts, associations and practices. Almost every practical feature of state sovereignty and behavioural autonomy is now subject to international and global constraints. The idea of political community can no longer be located within the boundaries of the territorial nation-state. The locus of effective political power has shifted from national governments to a host of international regimes. The general tendency is towards a global system in which there is overlapping or multi-layered authority and divided, or perhaps, multiple loyalties.

There are differences of opinion on whether political communities ever existed in isolation as bounded geographical totalities. Rather, boundaries have always been more permeable than much social science supposed. Be that as it may, according to Sousa Santos, after two centuries of pronounced de-territorialisation of social relations, the community cannot limit itself to being the territoriality of contiguous space. We indeed live in an era of opaque, local-global and immediate-final nexus. The de-spatialised “neo-community” transforms the local, the immediate and the global, so that the world becomes or has already become an “inter-subjective web of reciprocities”. The “logic of market opportunity” no longer coincides with the “logic of territorial loyalty”. Elites, in particular, are more and more likely to create links and solidarities across borders rather than within them.

So far as the influence of globalisation over culture and cultural identity, there exist two opposing views regarding. On the one hand, it is argued that globalisation generates greater diversity whilst on the other it is asserted that globalisation encourages cultural homogeneity. The evidence suggests that perhaps a combination of the above is taking place. If cultural diversity can survive the pressures of globalisation it is vital to consider how the participation of indigenous and other local communities can be increased and strengthened, through institutions that can adjust to the characteristics of this new social configuration.

It may be recalled that, neo-liberalism began as the Reagan-Thatcher attack on the welfare state and labour unions. It evolved into the Structural Adjustment Policies of the International Monetary Fund and the hurrah of triumph of the ideologues of corporate globalisation after the demise of the Soviet Union. William I. Robinson (1994) and Barry Gills et al (1993) pointed out that, the kind of “low intensity democracy” being promoted by global and national neo-liberal elites is really best understood as a regime form in which elites orchestrate a process of electoral competition and governance that legitimates state power and undercuts more radical political alternatives that might threaten their ability to maintain their wealth and power by exploiting workers and peasants. Robinson convincingly argues that ‘polyarchy’ and democracy-promotion are the political forms that are most congruent with a globalised and neo-liberal world economy in which capital is given free reign to generate accumulation wherever profits are greatest. Gills et al (1993) argued that “low intensity democracy” is, in fact, a form that facilitates the imposition of neo-liberal economic policies, including liberalisation, marketisation and privatisation, the three pillars of the Washington Consensus. However, the fact that capitalist globalisation has occurred in waves and that these waves of integration are followed by periods of resistance to capitalist globalisation, has important implications for the contemporary world.

Neo-liberalism began as the Reagan-Thatcher attack on the welfare state and labor unions. It evolved into the Structural Adjustment Policies of the International Monetary Fund and the triumphalism of the ideologues of corporate globalization after the demise of the Soviet Union. In United States foreign policy it has found expression in a new emphasis on “democracy promotion” in the periphery and semiperiphery. Rather than propping up military dictatorships in Latin America, the emphasis has shifted toward coordinated action between the C.I.A and the U.S. National Endowment for Democracy to promote electoral institutions in Latin America and other semiperipheral and peripheral regions. William I. Robinson (1994) and Barry Gills et. al (1993) point out that the kind of “low intensity democracy” being promoted by global and national neoliberal elites is really best understood as a regime form in which elites orchestrate a process of electoral competition and governance that legitimates state power and undercuts more radical political alternatives that might threaten their ability to maintain their wealth and power by exploiting workers and peasants. Robinson convincingly argues that ‘polyarchy’ and democracy-promotion are the political forms that are most congruent with a globalized and neo-liberal world economy in which capital is given free reign to generate accumulation wherever profits are greatest. Gills et. al. (1993) argued that low intensity democracy is a form that facilitates the imposition of neoliberal economic policies, including liberalization, marketization and privatization, the three pillars of the Washington Consensus.

The insight that capitalist globalization has occurred in waves, and that these waves of integration are followed by periods of resistance to capitalist globalization, has important implications for the future. Capitalist globalization increased both intranational and international inequalities in the nineteenth century (O’Rourke and Williamson 2000) and it has done the same thing in the late twentieth century. Those countries and groups that are left out of the “belle époque” either mobilize to challenge the hegemony of the powerful or they retreat into self-reliance, or both. Globalization protests emerged in the non-core with the anti-IMF riots of the 1980s. The several transnational social movements that participated in the 1999 protest in Seattle brought globalization protest to the attention of observers in the core, and this resistance to capitalist globalization has continued and grown despite the setback that occurred in response to the terrorist attacks on New York and Washington in 2001 (Podobnik 2003). The recent global antiwar demonstrations against the Bush administration’s “preventative” war against Iraq have involved many of the same movements as well as some new recruits. The several transnational social movements face difficult problems of forming alliances and cooperative action. The idea of semiperipheral development implies that support for more democratic institutions of global governance will come from democratic socialist regimes that come to power in the semiperiphery. This has already happened in Brazil, where the new labor government strongly supports the movement for global social justice.

II

For those that view globalisation as a threat to cultural diversity, the autonomy of local communities and their right to control their own futures are established as central ideas. This autonomy is no guarantee, however, that any local decision taken will be oriented towards the sustainability or preservation of cultural identities. Two fundamental transformations have shaped the constitution of contemporary political life. The first of these involved the development of territorially based political communities – modern nation-states. The second more recent transformation has by no means replaced the first in all respects, but it has led to a break in the exclusive link between geography and political power.

Globalisation has undermined the national state, not only by shrinking the resources under national control for shaping economic and social outcomes, but also by reducing government’s legitimacy and authority in the eyes of the public. Globalisation has also destroyed national control of information flows, hence weakens a government’s ability to influence its public. The effects of the internationalisation of the media, the marketing and export of the Western popular culture, and the deregulation of information have all combined to weaken national values and in so doing, they dry up the springs of support for national action. The effects of changes in the international economy are experienced through the national political leaders’ diminished control both over the material determinants of a country’s prosperity and over the vehicles for reaching common public understandings of national well-being. In this widely held view of the coming political order, the eclipse of the national state appears to be the central fact.

But, the dominant spatial paradigm of territoriality still determines whether we treat some identities and attachments as authentic and others as not. This paradigm has placed boundaries around some of the most fundamental attachments of the modern world like community, nationality and citizenship. However, it is now fashionable to depict territoriality and the identities attached to territories as everywhere in retreat under the impact of globalising forces. But a few strong and related responses to this trend indicate the continued power of territorial narrative.

First, there is an emergence or re-emergence of communal, nationalist and ethnic identities as part of a self-conscious backlash politics, sometimes referred to as “resistance to globalisation”. Second, there is still a potent force of the legal concept of sovereignty and the principle of non-interference. Third, there are emerging trans-territorial networks, or various signifiers of global cultures.

Against this backdrop, individuals and communities are experiencing the changes resulting from globalisation when they go to work, meet their friends, observe and challenge their political leaders, relate to their environment, and imagine their cultures, their ways of life. How individuals and communities take action in response to these changes can now more easily reach other parts of the world, affecting other communities far away, and forcing change on international institutions. These experiences, these responses and these actions often trigger processes designed to secure and build autonomy.

III

As globalisation has emerged to become the new organising principle of society at large, the term “post-national” has been deployed to describe the new architecture of international law. Individuals no longer identify themselves primarily with a state, or at least not nearly to the extent that they have in the recent past.

However, the binding force of international law and the legal status are still in question. The international community, instead of a community governed by law, appears to be nothing else than a collection of States and other entities with certain international powers, living in a state of nature, where the most powerful are free to impose their own rules. In order to make this arrangement more palatable, the most powerful might employ legal instruments to explain their conduct. In other words, international law is a very malleable system of rules, which can accommodate easily to the ambitions and desires of the most powerful States.

The most important question regards the possibility of identifying an ultimate rule of recognition that can validate the procedural and institutional framework of an organised community. The rule of recognition would allow us to talk of international law as a real system of law, instead of a collection of ad hoc agreements of States living in a state of nature. Within national legal systems, the ultimate rule of recognition usually adopts the form of a constitution.

In short, there is a close relation between the ultimate rule of recognition and the sense of community of the members of a particular society. Acceptance of the ultimate rule of recognition defines membership to a community, and therefore, the rule both requires and defines the community. In the international community of States, there is an ultimate rule of recognition composed of a rule pacta sunt servanda and of the obligation to comply with the rules of customary international law. These two rules should respect the community’s basic public policy of jus cogens.

A few more basic principles such as legal equality of States and the obligation of newly formed States may be added to accept the already existing rights and duties established by international law. Louis Henkin would like to add other basic rules such as the one containing the concept of State and government. One can also add the concept of nationality, and such norms as the ones establishing the principles of State autonomy, international responsibility and territorial inviolability. After all, all these rules serve one important purpose – the preservation of State autonomy.

In standard textbooks, international law is described as the law that governs the relations between States. During the 20th century new international legal subjects emerged – international organisations and individuals. Nevertheless, States still are the principal actors in the international legal system. The States have managed to keep a great measure of control of the international law-making process. International organisations can hardly be said to have changed the situation. Indeed, international organisations are made of States and they adopt decisions only. Hence, the States lead international law-making in the context of international organisations.

At present, this closed system in which States have managed to keep a prominent role in international law making, is experiencing a few changes. The system, in particular areas, has opened to the participation of the NGOs. However, it is too early to announce the democratisation of international law. The growth experienced by the participation of NGOS does not by itself solve disparities in access to international for a existing between different countries and different sectors of civil society. Therefore, there is still a serious democratic deficit in international law. Hence, individuals might not feel represented by decisions taken at the international level. The international legal experiences on autonomy may be assessed against this backdrop.

IV

Demands for autonomy or minority rights have given rise to conflicts, often violent, in every region of the world. An analysis of contemporary international legal norms would help us to understand the situation better. It is believed that, a right of autonomy within international law might help resolve intra-state conflicts between ethnic groups before they escalate into civil war and demands for secession. With the end of the US-Soviet Cold War, ethnic conflict appears to be re-emerging as sub-national groups fight to be heard and represented.

Perhaps the most obvious advantage of the idea of autonomy is the flexibility of the term, which is not a term of art under international law and may therefore encompass a wide range of constitutional relationships. The highest degree of autonomy may involve a wide range of political, judicial and economic powers, from a separate legislature and judiciary to fully independent financial authority. Autonomy may also be a means of responding successfully to concerns about minority rights, particularly when minorities are territorially concentrated in significant numbers. In 1993, the Council of Europe’s Parliamentary Assembly specifically recommended, “in the regions where they are in a majority the persons belonging to a national minority shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status, matching the specific historical and territorial situation and in accordance with the domestic legislation of the state.” The concept of territorial autonomy has also been discussed in some detail in the Lund Recommendations on Effective Participation by National Minorities in Political Life, which were adopted in 1999 in conjunction with the office of the OSCE’s High Commissioner on National Minorities.

Noting that all democracies have arrangements of governance at different territorial levels, the Recommendations urged states to “favourably consider” territorial arrangements “where it would improve the opportunities of minorities to exercise authority over matters affecting them”. The Recommendations also indicated that, territorial self-governing institutions should be based on democratic principles rather than ethnic criteria and should respect the human rights of all persons within their jurisdiction, including minorities.

The idea of autonomy, in a way, maintains the territorial integrity of existing states. However powerful they may be, the autonomous units are not sovereign on the international level and remain ultimately subject in varying degrees to the jurisdiction of the state in which they are found. This is obviously appealing to the states concerned, as well as to the others, who fear the destabilising effect of the proliferation of even smaller, ethnically defined states. Autonomy thus can be viewed as contributing to the stability of the existing international order, insofar as it replaces secession as an option.

As the nature of state changes and its role as an economic mediator between individuals and trans-national actors wanes, creative autonomy arrangements may provide a more appropriate means of reflecting more accurately real power relationships. Complex autonomy arrangements diminish the traditional role of the state as holder of all important rights and de-emphasise the relevance of state boundaries.

Since autonomy is potentially responsive to both majority concerns – preserving the integrity of the state – and minority demands – exercising a meaningful degree of self-government – it is often seen by outside mediators as inherently feasible politically and therefore useful as means of halting conflict. It provides an obvious compromise solution, as its precise definition is uncertain. Promoting autonomy also permits outsiders to be perceived as maintaining an impartial position between the minority and the central government, since autonomy rarely responds entirely to the wishes of the either side.

But, the very vagueness of autonomy of autonomy is unlikely to encourage a meaningful dialogue. Autonomy is not a concept that can resolve all conflicts, prevent violence, or guarantee political and economic development. It cannot automatically ensure social justice or bring good things to all people.

V

Most of the post-1945 international arrangements regarding the treatment of certain Western European minorities, such as the Paris Agreement of 1946 between Austria and Italy on the German-speaking South Tyroleans, resulted from very particular political and territorial circumstances and were adopted at a time when the emphasis in international Western practice was almost entirely on human rights for all while minority rights were looked upon with great suspicion. The fact that these arrangements still form the basis of the continuing protection of the minorities concerned, may indicate a trend that, even in a truly democratic context, ambitious regimes of this sort are far less likely to follow without the backing of international guarantees.

Leaving aside the 1990 Copenhagen Declaration of the then CSCE, brought about as a result of the optimistic climate generated by the fall of the Berlin Wall a year before, the first real operational attempt at tackling the minority question in Europe was more gloomily defined in terms of security, not law. The post of the OSCE High Commissioner on National Minorities (HCNM) was set up in 1992. The CoE in practice embraced some of the key assumptions – and inherent limits – underlying the security track when it decided in 1993 to go for the vaguely worded Framework Convention for the Protection of National Minorities rather than the stringent protocol to the European Convention on Human Rights tabled by the Parliamentary Assembly with Recommendation 1201.

Given the linguistic, educational and participatory components of autonomy schemes, the question remains whether there would be very much to gain from the right to autonomy compared to the benefits of deepening the protection attached to existing entitlements in the above areas. Moreover, internationalising or generalising minority rights based on domestic analogies, as opposed to internalising locally governed minority rights, may prove less far-reaching than expected.

Nevertheless, ethnic groups also have a legitimate right to minority rights. More specifically they have a claim to ‘poly-ethnic rights’, which ensure that they are incorporated into the dominant culture on fair terms, enabling ethnic groups and religious minorities “to express their cultural particularity and pride”. Not only should common rights of citizenship be more strictly enforced to eliminate all forms of discrimination and prejudice, but some group-specific rights should also be justified. The proposed paper would examine the international legal thinking on autonomy against this backdrop as against the backdrop of the latest phase of globalisation.