Economic and Political Weekly, Vol - XLIX No. 45, November 08, 2014
Through the Looking Glass: The Domicile Debate of Jharkhand
by Nirmal Sengupta
This paper is based on my doctoral work submitted to Jawaharlal Nehru University. I am indebted to Atiya Habeeb Kidwai The local domicile concept is fallacious in India because every citizen has the right to move freely, reside and settle in any part of the country. But domicile status can be used to grant a privilege only if there is some justifiable context like discrimination. This article deals with the domicile dispute existing in Jharkhand state, where the government is yet to complete the task.
Nirmal Sengupta (nirmal.sengupta@gmail.com) retired from the Madras Institute of Development Studies as director and is now settled in Kolkata.
Apparently, it is a pattern emerging in states not constituted on a linguistic basis. But domicile policy is not exclusive to such states. Most other states have designed their domicile policies to exclude deemed outsiders from certain educational and job opportunities. Internationally, each country has chosen its own domicile criteria1 for the purpose of taxation. To avoid double taxation countries enter into treaties. Mauritius has a Double Taxation Treaty with India. It has so designed its domicile policy that foreign institutional investors doing business exclusively in India may evade tax by becoming domicile in Mauritius. It is not unusual therefore that Jharkhand government chose a domicile policy for itself and that the policy favoured some and hurt some others. At the most it calls for a discussion of pros and cons, suggestions and alternatives. But in the case of Jharkhand the reactions were furious.
About Jharkhand’s domicile policy Anant Kumar wrote (2014) that the leaders of Jharkhand created “a fresh controversy leading to a divide between the tribals and non-tribals”, “…they demanded that the state should be ruled by its own people (tribals)”, “…The time has come to …expose them”, “…If these separatist (sic!) forces are not countered, it will lead to social divide and ethnic violence”, etc. The facts are very different.2 The locals never say Jharkhand is a state for scheduled tribes alone. They even invented a term moolvasi, comparable to mulki of Telangana. A committee that the chief minister of Jharkhand has formed to examine the criteria for “domicile” consists of three non-tribals and two tribals.3 Using Stuart Corbridge’s (1988) term Kumar’s piece is an example of “perversity model” narratives on Jharkhand movement. This kind of narratives abounds in media, administration and academics, on all topics not just on domicile issue. This article shows what is wrong in it and what should be the right kind of appreciation.
The Looking Glass
Stuart Corbridge categorises accounts of the Jharkhand movement as of four types. One is the “sons of the soil model” of anthropologists and political scientist like Sachchidananda and Myron Weiner, that explains the current as the continuity of the past movements. Next, the “perversity model”, favoured by official circles, depicts the movement as a “perverse and irrational response to the progressive tribal policies of the post-Independence administration”. The third is the radical “internal colonialism model” argued by Steve Jones and Marxist trade unionist A K Roy.4 The fourth model,5 unlike the other three, rejects ethnic closure theory and visualises the local population, including tribals, as non-homogeneous, dynamic communities. Thereby, while using the same set of data, the fourth model arrives at a characterisation of the Jharkhand movement as constructivist, not primordial, developing its own identity.
In brief, Jharkhand politicians never practised an isolationist policy. Jaipal Singh, the founder of the Jharkhand movement, accommodated local Marwaris and Punjabis in his party (Sharma 1990: 242). Throughout his life Jaipal Singh maintained that tribe-non-tribe division was a census manipulation – but for it 90% of the people of Jharkhand would be adivasis.6 It was the ground reality, not political opportunism. Even in Uttar Pradesh (UP) the administration had a change of heart and decided that some communities who were given scheduled and backward caste tags in the past might be retagged as “scheduled tribes”. As a result the scheduled tribe population in UP, enumerated at 1.08 lakhs in 2001 Census increased by 950.6% in the next census reaching a count of 11.34 lakhs.
On paper, the tribe-non-tribe separation is thorough. Not so in reality. No wonder that those dealing with virtual tribes and those with the real ones differ in their perceptions. Xaxa (1999: 3595) explained it as follows:
There is an important gap in the sense in which the term tribe is used and understood by the tribals ...and by others, especially the administrators, lawyers and academicians. For the latter, communities are tribes only if they are so listed in the Constitution.7
Tribes, on the other hand, do not view tribe in the sense of a politico-administrative category. Rather they view themselves as belonging to the same community, irrespective of whether a group or segment of it is listed or not listed in the Constitution. By virtue of this bond of emotions they are also the adivasis or the indigenous people though the Constitution does not recognise them as tribes.
Many leading anthropologists were aware of this unreal division. They produced cogent arguments against it (for details see Sengupta 1988; Corbridge 1988: 143-46). In the 1970-80s, when the present phase of Jharkhand autonomy movement began, local intelligentsia brought these scholarly critical writings to the attention of the masses. Hundreds of local publications, of all possible forms, were circulating in Jharkhand carrying such efforts.8 They succeeded in contesting morally the tribe-non-tribe dichotomy and sealed whatever cracks had appeared in the organic composition of the local society. By the time Jharkhand state was formed, Jharkhandis could question the narrow official notion of tribe that make them minority in their homeland (Ekka 2001). Today within Jharkhand, the connotation of tribe/adivasi has become so very inclusive that it is used to buttress sub-national passion. In addition, they have coined a new term, moolvasi, meaning original settler, which must clear all confusions. But outside,9 there are many who suffer from hangovers.
Lest it is misinterpreted let me add that the individual community identities have not been lost. Old discourse on how to develop tribal people was shaped by two schools of scholarly thoughts. One advocated integration of tribals as citizens of a nation state and the other sought their assimilation into the Hindu fold losing their distinct identities. In an incisive article Xaxa (2005) opines that the relevant sections of the Constitution for its citizens and the special provisions meant for the tribes rather agree with integration philosophy, not assimilation. Further, the Constitution provides space for diversity in integration by including such subjects like protection and promotion of tribal language, culture and tradition apart from reservations. Originally, the implementation of these constitutional provisions rested on the benevolence of the larger society, working through the state policies, administration and political parties. Of late, this is being spearheaded by the growing middle class among the tribals. Thus, on the one hand, different tribal/adivasi communities in Jharkhand have come together to exercise the autonomy right they achieved, on the other, they are pursuing their separate identities by actively promoting their diverse languages, cultures, customs and traditions. When India chose this path of unity in diversity, others said that we were playing with fire. Cynical experts had predicted that India’s democracy would collapse because of linguistic and cultural diversity.10 We have proved them wrong. In Jharkhand there are intercommunity tensions, as in other states. But that is how Indian democracy thrives.
Injustice and Aftermath
Moving to India during Partition in 1947, about 2,000 Hindu and Sikh families had settled in Jharkhand. They fear losing their homes after the domicile question was raked up (Agarwal 2013).
Ever since the coal mines and Tata Steel Plant came up over here in early 20th century, people poured in from near and far-off areas. Old census data compiled by both Corbridge (1988) and Ekka (2001) show that in-migration was more or less steady till 1931. Then it started increasing rapidly. The table shows some data about in-migration (Sengupta 1982: 13-14).
However, migrants like Punjabis coming from distant regions were very few; those from the adjacent states accounted for above 90% (Ekka 2001). The 1961 Census also collected data on dialect speakers. In Jharkhand, the number of speakers, who mentioned Bhojpuri and Maithili dialects of Bihari Hindi as their mother tongues were 1,13,000 and 16,000, respectively. Many others from these regions of Bihar might have mentioned Hindi as their mother tongue. Likewise, many Jharkhandi dialects were classified in linguistics as forms of Bengali. Hence, it was not possible to estimate the number of Bengali immigrants, since there were numerous Bengali migrants. But far more than just numbers, the migrants from these two regions wielded immense power on Jharkhand region by using their special dispensations. In turn, in the 19th century when Jharkhand was a part of Bengal, popular movements were directed primarily against Bengali exploiters11 contemptuously called dikus. In this phase, it is mainly against the partisan Bihari immigrants (Ahmed 2002), loathingly referred to as non-tribals.
The table points to another feature of in-migration. The shares of distant regions tapered off from around the second plan period of rapid industrialisation. Since then several major industries were built in Jharkhand where persons from the state, but primarily from north Bihar, received jobs. Though they too were from the same state, the neighbouring locals were overlooked. Out of a total of 4,284 employees in the Heavy Engineering Corporation, at Ranchi, there were only 335 tribals (Sharma 1990: 285). The discrimination was conspicuous. Originally, important junctions of Bokaro Steel City were named after Bhojpur region – ArrahMor, ChhapraMor, BaliaMor (Sengupta 1982: 13). After there was a public outcry, the names were changed. Land acquisition by mines and industries made lakhs of local people refugees of development. Earlier, when working conditions were very bad, mine owners used to engage locals as miners. When in 1971 coal mines were nationalised and job conditions were sure to improve, in a single week thousands of telegrams were sent from Dhanbad district to Arrah, Balia, Chhapra informing that jobs were available. It was believed that 50,000 Jharkhandi miners lost their jobs at this point of time (ibid: 15). At a later date Singh (1994: 286-90) described how in blatant violation of rules, universities located in Jharkhand region were recruiting only north Biharis for Class III and IV category jobs. When the autonomous state was established in 2000, such issues were foremost in the minds of everyone. No wonder the first chief minister of Jharkhand attended to this issue almost immediately after he came to power.
Hanumantha Rao (2010) has argued that formation of smaller states like Jharkhand or Telangana has become necessary due to persistent, even increasing intrastate disparities in development in larger states. Within the parent states, he explains, the backward regions do not have political clout in decision-making regarding public investment and provision for jobs. I would add that, statehood by itself may not be enough to usher in a new power equation that may do justice to the erstwhile sufferers. If the division is on linguistic basis the vestiges of the mother states would automatically be on the back foot. But non-linguistic states like Jharkhand, Uttarakhand, Chhattisgarh and Telangana need affirmative action to break the stranglehold. Statehood only creates a favourable condition for such action.
Domicile Criterion
Sensing the widespread public discontent, the steel plant administrators not only changed the names like ArrahMor, but also issued an internal circular directing plant officials to engage only the locals for the unskilled worker category jobs. At that time I was studying scheduled castes in the adjacent Chas town. I saw how excited the able-bodied Bauris were hoping, for the first time, to get a job in the giant-size plant next door. In this period senior officials in some of the public sector units in Jharkhand had issued similar directives hoping to bring in some humane face to development. But junior officials could easily scuttle this initiative by interpreting any village within the state as local. The law was on their side. However, this outreach effort of the public sector officials found several enthusiasts among the civil administrators; those were the days when special programmes for the poor were not yet invented. They brought it to the attention of the then chief minister who convened an all-party meeting to arrive at a definition of “local”. In March 1982, Bihar government notified the decisions of the meeting. Accordingly, the nodal base of the definition was “district”, and a person was a local to a district if his/her forefather’s name appeared in the record of rights linked with the last survey of that district. On a different issue Bihar was already on the road of affirmative action. In 1978, Karpoori Thakur introduced reservation for the backward classes in government jobs. But the 1982 Notification about local persons was not followed up by affirmative action. The government made a general appeal to the employers to accord preferential treatment to local persons as defined.
Jharkhand state was formed in November 2000. The new government reasoned that the 1982 Circular of Bihar government was still in force in Jharkhand and they need not formulate another domicile policy for initiating affirmative action. Its content was reissued in September 2001 changing the state name. Subsequently, the government circulated a set of guidelines and resolutions for implementation of its resolve. Clashes broke out between potential gainers and losers, just as it was between the forward and backward castes in Bihar in 1978. The initiative of the Jharkhand government was challenged in public interest litigation. In a momentous judgment12 a five-member bench of Ranchi High Court made it clear that under certain provisions of the Constitution affirmative action, even on the basis of residence, is allowed. The bench rejected the Jharkhand government orders because of several technical lacunae, particularly in the definition of the term “local resident”. The judgment was explicit on that certain parts of the notifications were
…well conceived and is based on a fair and objective criterion. In our considered opinion, the State Government may be well advised in considering the question of adopting the aforesaid Notification or the parameters and guidelines contained therein with suitable modifications (wherever they are needed) with respect to employment in Class III and Class IV posts which form the subject matter of the impugned Notifications.
In view of the important questions of constitutional law involved one of the judges added a clarification that other judges concurred with:
...giving preference to ‘local persons’ who are familiar with the local conditions such as local language, customs, etc, is valid being constitutional and within the ambit of State Government to frame such guidelines/rules.
It was open to the state government to redefine the term local persons and to re-prescribe the guidelines in the light of the observations made in the judgment.
Jharkhand government is yet to complete these tasks. A committee has been formed to examine the criteria. But its progress was slow because of the general election. Meanwhile, the domicile dispute in Uttarakhand reached another height. In August 2012, the Nainital High Court had declared that the legitimate cut-off date should be the date of formation of the new state; any person living in Uttarakhand since the day when the state was formed was entitled to get domicile certificate. The order was challenged and on 25 May 2013 a judicial bench of the high court changed the cut-off date to 1985, exactly 15 years before the date of formation of the state. In the appeal that followed in March 2014, the Supreme Court upheld this decision of the judicial bench, thus creating a landmark judgment for domicile policy within India.
These judgments of two high courts and the Supreme Court dispel the popular notion that local domicile concept is fallacious in India because every citizen has the right to move freely, reside, and settle in any part of the country. But domicile status can be used to grant a privilege only if there is some justifiable context (like discrimination). Significantly, eager to set right historic injustice, the new states tend to propose very old cut-off dates. The last survey of Jharkhand districts was in the 1930s. The Mulki rule was promulgated by Nizamin in 1919. Uttarakhand Kranti Dal pushed for 1950 as the cut-off year. The judges also made it clear that very old cut-off dates cannot be agreed upon. Drawing distinction between simple and permanent residence, the courts mandated 15 years previous to state formation as another requirement for getting domicile status. These judgments may have much wider impact than just on Jharkhand or Uttarakhand.
Notes
1 In the United States where states also collect taxes, each state has its own domicile policy.
2 Contrary to what is commonly believed economic performance of Jharkhand state is not too bad. C H Hanumantha Rao (2010) has been repeatedly stressing through his writings that smaller States like Uttarakhand, Chhattisgarh and Jharkhand were able to achieve much higher growth rates in their gross state domestic product (GSDP) than the targets set for them by the Planning Commission in the first ever plan they faced. Also, their growth rates were significantly higher than those achieved by their parent states.
3 The committee members are Bandhu Tirkey (Independent), Sanjay Singh Yadav (Rashtriya Janata Dal), Sarafraj Ahmed (Congress), Lobin Hembrom (Jharkhand Mukti Morcha (JMM)) and Vidyut Varan Mahto (JMM).
4 The late Ram Dayal Munda and S Bosu Mullick did a yeomen service by reprinting together many of the articles related to the Jharkhand movement. The publisher made the book freely downloadable. For all those reprinted articles cited here the page numbers are as in this compilation, Munda and Mullick (2003: 78-85).
5 This is now known as “constructivist” model.
6 For example, see his presidential speech to All India Adivasi Mahasabha 1948 reproduced in Munda and Bosu Mullick (ed.) (2003: 2-14). He began by explaining “why I have always maintained that the census figures had to be quadrupled to get a correct estimate of the aboriginal people of this country” (p 2).
7 No one, including the government officials has ever defined who is a tribe, nor is it possible to do so by any physical, social or cultural feature. A community is a tribe in India if it gets included in the scheduled tribe list of the Indian Constitution.
8 I made some of those available to English-speaking outsiders (viz articles by B K Mehta,A K Jha and B P Keshri in Sengupta (ed.), (1982).
9 Interestingly, in tea garden areas local people call migrant workers, most of whom are from Jharkhand – adivasis. The local tribes therefore think it is derogatory to be called adivasi (Roy Burman 2009). South Indian tribes tend to think adivasi is a pejorative which evokes primitive image (Bijoy 2001).
10 For example, Selig S Harrisson’s popular book India: The Most Dangerous Decade, published in 1960.
11 In his Santal Dictionary, written in 1934, Bodding wrote that the Santal understanding of deko (diku) was that of a Hindu or Bengali of the better class, not low-caste Hindus as, e g, Doms, Bauris, Hadis (cited in Pfeffer and Behera 2002: 113-14).
12 Prashant Vidyarthy and Suman Kr vs State of Jharkhand and Ors on 27 November 2002.
References
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Agarwal, N K (2013): “Jharkhand’s Domicile Policy Worries Landless Hindu Migrants from Pakistan”, The Times of India, 31 July.
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Corbridge, Stuart (1988): “The Ideology of Tribal Economy and Society: Politics in the Jharkhand, 1950-80”, Modern Asian Studies, 22(1): 1-42; reprinted in Munda and Bosu Mullick (ed.), (2003): 131-70.
Ekka, Alexius (2001): “Jharkhand Tribals: Are They Really a Minority?”, Economic & Political Weekly, 35(52-53): 4610-12.
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