Manipur's Obsession With Hills And Valleys: Part 2
Missing The Speck And The Log At The Frontiers

Laifungbam Debabrata Roy *

Hills and valleys in Manipur :: Pix by Bullu Raj

"Seek freedom and become captive of your desires. Seek discipline and find your liberty."
[Frank Herbert]

Language, land and law

Instead of recognising the fact that early British linguistic and other classifications were quite arbitrary and poorly informed by an inexact science, I find that our belligerent groups and learned leaders, young and old, engaged in the present poisonous debate continue to offer and perpetuate arguments that are self-contradictory in their essence. All kinds of administrative reports, footnotes, diaries and communications between petty colonial officers are religiously sourced.

Extracts, remarks and quotes by colonialists discerned as useful ammunition are parroted out of context and fired at each other. The government, colonial (British) or successor (Indian), are painted as demons or heroes as a matter of convenience by all the parties whenever it suits them. The Constitution of India, a document that is "from time to time changeable by way of addition, variation or repeal" that gives with one hand and takes away with the other, is referred to by the argumentative parties as a monolithic or biblical, almost God-given, volume sometimes and at others, as a book of witchcraft from the Index Librorum Prohibitorum ("List of Prohibited Books").

We are trapped within a post-colonial state formation track. Whether some us around here aspire for Nágalim or Kukiland or Kangleipak or whatever, the local intelligentsia are unable to look at our profound and historic relationship to our lands and with each other as peoples beyond the myopia of European colonial and post-colonial mind-set constructs. Although the effective authority of non-state actors over certain domains - such as economic redistribution and the determination of rights to economic resources - might lead us to conclude that they stand in 'opposition' to the nation-state, the relationships between both are often as antagonistic as they are reciprocal and complicit.

Artificially separating the state from the non-state, the formal from the informal, or the personal from the political, therefore, leave us no room for fluidity, porosity and overlap. In other words, we need to re-evaluate the dominant ideal model of the state as being strong or weak, failed or functioning by specifically demonstrating the interconnectedness between several dimensions of political space and action, which gather their specific expression in everyday practices of survival and regulation.

We have to question the idea of the state as a ''thing'', which apparently soars above people's heads in an abstract and dominant fashion. What we are seeing over the last few decades is the phenomenon of political power being constantly demonstrated, projected and contested by ordinary people trying to arrange and project their lives. The persistent reordering of space in our frontier lands is not a product of nations, but is creating them.

The elite amongst us, be it state or non-state, government or civil society, prefers the status quo when it comes to a perception of the political economy of our frontier lands. The elite always projects the colonial and post-colonial state constructs, dominating and encroaching as "superiorly placed" groups that determine and mould our world. They prefer to ignore the "broad scenes of intense interactions in which ordinary people from both sides work out everyday accommodations based on face-to-face relationships" (as described in a much cited article by Willem Van Schendel and Michiel Baud).

The Constitution of India originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to 'acquire, hold and dispose of property'. Article 31 provided that "No person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property had been 'taken possession of or acquired' for public purposes. In addition, both the state government as well as the union (federal) government were empowered to enact laws for the "acquisition or requisition of property" (Schedule VII, Entry 42, List III). It is this provision that has been interpreted as being the source of the state's 'eminent domain' powers.

The provisions relating to the right to property were changed a number of times. The 44th Amendment Act of 1978 deleted the right to property from the list of Fundamental Rights. A new article, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus, if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32.

Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. So, under the Indian constitutional and legislative dispensation, it is meaningless to talk of inviolate rights over land, the state owns all. This is the true meaning of 'eminent domain', a legal concept introduced from Europe. The state does not need the citizen's consent to seize or expropriate private property. The property is taken either for government use or by delegation to third parties who will purportedly devote it to public or civic use or, in some cases, economic development.

Recently, much public reference has been made to Article 371C (under Part XXI – "Special Provision" amendment made by the Constitution (Thirteenth Amendment) Act, 1962, sec. 2, w.e.f. 1.12.1963, and inserted by the Constitution (Twenty-seventh Amendment) Act, 1971, sec. 5, w.e.f. 15.2.1972), the Vth or VIth Schedules of the Indian Constitution, and the Manipur Land Reform & Land Revenue Act of 1960 enacted by India's Parliament while Manipur was a Union Territory. The ML&LR Act is a law enacted without the assent of or debate by the people of Manipur.

Some of the belligerent parties claim that Article 371C of the Constitution and the Vth Schedule provides special and discriminatory protection to the tribes. After reading these provisions, I have only these comments to make. Article 371C makes no mention of a Scheduled or any other kind of tribe; its two clauses merely give the President of India a totally arbitrary power to declare what is or is not a Hill Area of Manipur. Of course, this also means that the India's President can also subsequently and equally arbitrarily un-declare what was previously declared as a Hill Area in Manipur.

A hill, by definition, is merely a topographically described particular feature of a geographically located area. No mention of valleys is made in this Article. So, technically and legalistically, some areas may be declared as Hill Areas, but such a Presidential declaration in his or her wisdom may exclude the adjoining ecologically unifying valleys from such protective provision that have implications beyond the narrow administrative sphere. I wonder how the President can possibly or conceivably make such declarations upon his or her mere whim.

On the other hand, eager to support this arbitrary and absurd provision as a protective or affirmative measure, some of the debating teams have read this provision to equate Hill Areas to the Scheduled Tribal Areas. So, Hill Areas mean Tribal Areas and vice versa. The President may declare Keishamthong in Sagolband Assembly Constituency or Moirangkhom in Yaiskul AC or Mahabali in the Manipur Palace Compound in Wangkhei AC as Hill Areas in the middle of Imphal City tomorrow – that is possible and Constitutionally, in order.

Similarly, areas inhabited by Meitei (who are not yet a Scheduled Tribe) in Churachandpur Town, or Moreh or Kwatha in Chandel District may be declared as not Hill Areas. Needless to say, those peoples who are not Scheduled by the President of India are not "protected" by any of the special provisions in the Constitution. The people of Manipur are not protected by Article 371C. It merely gives the constitutional head of the government of India totally arbitrary and discriminatory powers to determine what geographers and ecologists all over the world have still a hard time defining as a hill.

The VIth Schedule does not provide for Manipur, so it remains a wishful thought. The Vth Schedule is a different matter because it applies to all of India except where the VIth Schedule is applicable – Assam, Meghalaya, Mizoram, and Nagaland. But this Schedule only merely applies, for actually, it is never really implemented. When I look at this Schedule carefully, I am shocked. It prohibits the Scheduled tribes from even transferring land amongst each other. Each tribe, each tribal even, is stuck literally forever in its village or imagined Scheduled area. In reality, the tribe does not get even the constitutional rights that every citizen of India enjoys with his or her rightful immovable property.

On the other hand, the right is abolished and transferred to the government to do as it pleases with it. The government also enjoys the privileges of regulating and benefiting from the practice of money-lending in the Scheduled areas. The underprivileged Scheduled Tribes are only allowed to sit and occupy (squat) the presidentially designated areas, no more. Confined and incarcerated by this ingenuous Schedule, the Scheduled Tribes can only hope to get out and get along in life when their land is acquired for a "greater public purpose" by the application of the Land Acquisition Act of 1894 and they are forcibly displaced (thrown out by an old British law that is not only applicable, but actually regularly implemented in full). In this human zoo, only the zookeeper decides who to throw to the sharks.

As for the land law enacted for Manipur, but only applicable to the arbitrarily declared "Hill Areas", I can only say that we would very much better off without it. After this Act came into force in 1960, almost all the old land records of the Imphal Valley areas have mysteriously disappeared. So the land squatting rights of the people of the Imphal Valley literally sprang into being from 1960. But, this is not as good as it may sound. Land registers cannot verify certificates issued by the government of or the State of Manipur before 1960 in innumerable instances. The rights that existed before 1960 are effectively erased

Finally, grappling with the problem

How do we as responsible people with a sense of our unique histories, desire for honourable outcomes, aspiring self-respecting livelihoods, valuing freedom, wishing to live with dignity, recognizing our shared ancestry, often harping on faraway lands where we originally came from and drawing genomic relationships with other distant peoples, get a grip on this vexed and hexed problem? A problem, now inter-generational, that is branded by rapidly receding hopes for peaceful co-existence, destruction of our birthright and selfish squandering of our inheritance.

A Nyishi elder in Arunachal Pradesh once gently told me, some years ago, when I spent an evening with him to explain the effects of large dams on the mountain people, "Who is this government? Where did it come from? We were here before they came." The European colonials asserted the modern legal concepts of "terra nullius" and "eminent domain". They conquered and occupied lands as if the land belonged to no one before they arrived. The doctrine of terra nullius as it is applied to indigenous peoples holds that indigenous lands are legally unoccupied until the arrival of a colonial presence, and can therefore become the property of the colonizing power through effective occupation.

The present government of independent India continues to adopt this western legal doctrine, as embodied in the Land Acquisition Act of 1894. In other words the people of India are squatters on their own lands, because the government claims ownership of all the land in the territories of India. The Martínez Cobo study, commissioned by the United Nations, found that many countries with large indigenous populations nevertheless reported that no such peoples existed there. India, on the one hand, is one country that claims that all its inhabitants, including the tribals, at the time of independence, and their descendants are all indigenous.

On the other, the Indian government also claims there are no indigenous peoples in the country. Unless and until the right to private property is first reinstated as a fundamental right in the Indian Constitution, all claims to private property, ancestral land, and so forth, are null and void. The 44th Constitutional Amendment Act of 1978 must be quashed.

Prof. Erica-Irene A. Daes, an expert member of the UN Sub-Commission on the Promotion and Protection of Human Rights was the Special Rapporteur entrusted in 1997 with the challenging task of preparing a Working Paper on indigenous peoples and their relationship to land with a view to suggesting practical measures to address ongoing problems in that regard. Prof. Daes submitted her final Working Paper in 2001. While submitting her researched paper, she requested the United Nations to have it translated into different languages and disseminated widely. But this never happened.

According to her, "it is fundamental that this relationship be understood as more than simply a matter of "land ownership", in the usual sense of private ownership by citizens, but a special and comprehensive kind of relationship that is historical, spiritual, cultural and collective." It is fundamental to understand that we indigenous people do not relate to our land exclusively by the inch. If we embark on an honest and collectively participatory exercise of demarcating indigenous territories in Manipur based on the profound relationships we all have with our land, we shall surely find that many of the territories overlap and more are shared by neighbouring groups. "Ancestral domain" is not synonymous with "eminent domain".

Prof. Daes elucidated many problems associated with indigenous lands, historically and currently. As all the original inhabitants of Manipur claim to be indigenous peoples, it would be very wise to undertake a serious reading of her learned paper. By such an exercise, we shall discover that not only is the present ceaseless clashes we engage in amongst ourselves quite absurd, but we shall, more importantly, learn where the problems really lie. Putting it into the language of the physician, it is most important that we diagnose the disease before we prescribe.

Making a comprehensive diagnosis of our land related issues and problems is easier said than done. There are an enormous number of issues and problems relating to indigenous land rights. Any attempt to deal with all of them would necessarily be superficial and lengthy. A better way would be to sort and organize the multitude of issues into an analytical framework and to attempt to identify those issues or problems which are the most fundamental or most severe and, of these, the most deserving of attention in the search for means of alleviating the suffering and injustices endured by the different ethnic groups or indigenous peoples of Manipur.

The very first consideration. We all need to address and agree upon what the core values or principles that would guide our work should be. Such a set of core values that we would all agree upon should be affirmative, and not condemnatory. Only the positive values should be on the table. Negative values should be discarded as they are usually contentious and dispute prone. Negative values with very limiting scope and freely interpretable, such as "not an inch of our land shall be sacrificed" or "the land belongs to no particular group" or "government owns all the land" can never progress our problem-solving work. The international human rights framework provides a useful set of core values, values that the Indian Constitution and juridical system that obviously do not satisfactorily meet our needs or aspirations, and fail to deliver for us.

Concluded ....