Excluding minority Chakmas from category-I will be legally untenable, says Chakma Law Forum

September 27, 2014

The Chakma Law Forum(CLF), a platform that was formed with the aim to provide, represent, promote and safeguard the rights and legal interests of the Chakma community and provide legal aid to members of the community, has questioned and condemned the decision of the state government for giving in in and agreeing in principle to the unreasonable and unconstitutional demand of the Mizo Zirlai Pawl (MZP)to exclude Chakmas from the Category-I of (the Selection of candidates for Higher Technical Courses ) Rules 1999 and adding the term ‘Mizo” to the Rules to automatically exclude Chakmas from the purview of the Rules.

The Forum asserted that the Chakmas are also indigenous of the state of Mizoram having been natives of the Western parts of the state since time immemorial. It has questioned the historical and legal foundation/basis of the MZP’s assumption and understanding of the idea of Mizos being the only ‘indigenous peoples of the state”.

The Forum sought to remind that the concept of ‘indigenous peoples’ in the Indian context is neither formally defined nor established and all Scheduled tribes are understood to be indigenous and questioned the unsound distinction made by the MZP.

It cited the words of the then Honble Chief Justice of India Y.K. Sabharwal who reiterated the Indian position on the concept of ‘indigenous peoples” while addressing the Plenary Session in the United Nations on the Rights of Indigenous Peoples in 2006, where he said that “ ….. it is not easy to identify indigenous peoples in India. For there have been continuous waves of movement of populations with different language, race, culture, religion going back centuries and millennia. Tribal communities have been a part of this historical process. In these circumstances the question arises as to how far back in history should one go to determine the identity of “indigenous peoples”? Whatever the nature of determination it is likely to be extremely arbitrary and controversial.” (Emphasis supplied).

The closest that the Supreme Court had come to in making a direct observation on the link between the term “Scheduled tribes” and the term “indigenous peoples” is when in its judgment in 2011, while dismissing the Criminal Appellate Jurisdiction arising out of Special Leave Petition (Crl) No. 10367 of 2010) (Kailas & Others .. Appellant (s) -versus- State of Maharashtra), the Honorable Court had unequivocally asserted that Scheduled Tribes are indigenous peoples of India.

Therefore, the law is very clear on this and the Chakam Law Forum has vowed to fight such unjust and discriminatory Rules if they are sought to be brought out or amended and enforced to the detriment of another community in the state.

Dilip Kanti Chakma, President of Chakma Law Forum, in an statement which was also sent to the Chief Secretary of Mizoram, Office of the Chief Minister, The Ministry of Home Affairs, National Commission for Minorities and to the media, has stated that “Any move to facilitate such blatant denial and deprivation of equal opportunities by the state will not only be unfair and unjust but also unconstitutional. Let the government of Mizoram proceed with its plan to bring amendment to the existing rules to exclude the Chakmas from Category-I as demanded by the MZP. We will challenge the validity and constitutionality of such an action”.

He also condemned the unreasonable and unfair demands of the Mizo students body when he said, “Nowhere in the country have we come across such unreasonable demands being made by the majority community to deprive a minority community of equal access to opportunities. It is a blot on the image of the state in a country where respect for the principles of equal rights and equality of opportunities is beautifully enshrined in Article 14 of the India Constitution.

An analysis of the Selection of candidates for Higher Technical Courses Rules 1999

According to the rules, students attempting the Technical Entrance Examination are divided into three categories:
(a) Children of local permanent residents (emphasis provided) of the State of Mizoram as Category-I;
(b) Children of non-local permanent residents (emphasis provided) of the State of Mizoram as Category-II and
(c) Children of Central/Other State Govt. employees not permanently serving in Mizoram as Category-III.

For the purpose of this sub-rule, the term “Local permanent Residents” means those who are indigenous people of the State of Mizoram and have been residing permanently in the State, and the term “Non-local Permanent Residents” means those who are non-indigenous people of the State of Mizoram but serving under the Government of Mizoram or Government Corporation or Autonomous Bodies under the State Government, or other recognized organizations under the State Government who are regular employees of such organization and in whose case, it can safely be inferred that they would reside permanently in Mizoram . On the basis of marks obtained in the Selection Examination, Selection shall be made in order of merit from amongst eligible candidates from Category-I first. In case sufficient number of eligible candidates are not available from Category-I, the remaining seats shall be filled in, in order of merit by the eligible candidates from Category-II and Category-II likewise.

Our opinion/analysis

At the face of it, the present Rules is very clear that Category-I was created /intended to include the children of all local permanent residents of the state of which Chakmas certainly are also LOCAL and PERMANNENT RESIDENTS by virtue of their Constitutionally granted status as ST of the scheduled area of Mizoram.

The drafting and language of the Rules are very clear and reflects the intention and public policy of the authorities to include the children of permanent local residents in the Category-I. However, the fault lies in the use of the term ‘indigenous’ in the Explanation clause and hence leaving room for various interpretations in the absence of a clearly defined concept of ‘indigenous peoples’ in the Indian context. Now, let’s say that the state government adds the term “Mizo” in category-I, then which category shall the Chakmas be put in?

Obviously they do not fall in category-II (non-local permanent residents) because Chakmas are local and permanent residents of the state. Certainly not in Category-III which is for children of central and state govt employees.

It would be interesting to see what changes the state government plan to incorporate into the Rules to please and entertain the demands of an unreasonable and radical MZP to the detriment of the minority Chakma tribe. To find out how such discriminatory and unfair amendments as have been already promised to the MZP by the government can be carried out without being challenged on its Constitutional validity in the Court of law, we shall wait and watch.

In the meantime, we hope the learned and wise souls of the law and judicial department of the state will explain to their political bosses that an amendment to the existing Rules to remove the Chakmas from category-I will not only be unconstitutional but such an attempt will also appear juvenile before the rest of the country.

Dilip Kanti Chakma
BA. LLB, National Law School
President,
Chakma Law Forum
Bangalore.