by Mohammad Anas Dhorajiwala & Aastha Sheth SVKM’s Pravin Gandhi College of Law, Mumbai University
Every year on November 26th, we commemorate Constitution Day to be reminded of how wonderful our Constitution is and how it took the greatest minds in our country 2 years, 11 months, and 18 days to complete this sacred (living) document. The constitution is the best teacher. Additionally, the 75th anniversary of the Universal Declaration of Human Rights is approaching (human rights day). Dignity, Freedom, and Justice for All is this year’s theme.
When talking about Dignity, Freedom, and Justice for all it is crucial to keep in mind Our Roots, Our Native Tribes, and Our Culture? What do we do to protect them, their culture, and their heritage? Is there a need to do so? This blog hopes to shed light on the particular point at issue.
For this we need to reflect back on history to understand this.
USA
Four massive sculptures representing the faces of the four U.S. Presidents have been carved into the southeast face of Mount Rushmore in South Dakota’s Black Hills National Forest. Around two million tourists visit Mount Rushmore’s hills each year but are unaware of the history behind it. The Lakota Sioux, a native tribe, called this granite formation Tunkasila Sakpe Paha, or Six Grandfathers Mountain before it became known as Mount Rushmore.
The Great Plains’ Native population regarded it as a place of worship. For their tribe, it served as the center of the universe. The US government signed the Fort Laramie Treaty in the late 1800s, which granted the tribes exclusive use of the hills. However, after a decade, gold was discovered in the area, and the US violated the treaty by taking over the land and carving faces into it. While they continue to oppose what they see as illegal U.S. possession of their ancestral lands, many Native Americans view Mount Rushmore as a desecration of the land.
Australia
The first people of Australia, also referred to as Aboriginal Australians, have inhabited the continent for over 50,000 years.
‘Aboriginals have a special connection with everything that is natural. Aboriginals see themselves as part of nature… All things on earth we see as part human. It is true that people who belong to a particular area are really part of that area and if that area is destroyed they are also destroyed.’
Aboriginal peoples have had their land taken from them ever since the British first invaded. The legal precept governing British and later Australian law regarding Aboriginal land was known as “terra nullius” until it was finally overturned in 1992 in the Mabo Case which marked the recognition of the existence of Aboriginals for the first time. It was believed that because the land was vacant when the British arrived, it belonged to no one and could be legitimately taken over.
During much of the 20th century, outright killings were replaced with a policy of removal. To completely eradicate all traces of Aboriginal culture and language, white families took Aboriginal children from their parents and placed them in missionary schools.
Canada
Most Indigenous children in Canada were forcibly removed from their families and sent to boarding schools for many years. Many of them never went back. According to reports, a mass grave on the grounds of a former residential school is home to the remains of 215 children.
What is the Burden of the White Man?
The White Man’s Burden is a previously asserted duty by white people to manage the affairs of nonwhite people whom they perceived to be less developed.
Here’s an example: Previously, Hindus and Muslims were educated through Pathsala and Madrassa, respectively, but the arrival of the British created a new place of learning, namely Missionaries. To rule in India, they planned to educate a small section of the upper and middle classes in order to create a class that was “Indian in blood and color but English in taste,” acting as interpreters between the government and the masses. This was also referred to as the “downward filtration theory.” This led to the withering away of the natives.
The concept of “son of the soil” arose as a result of this conflict. It contends that the state explicitly belongs to the main territorial group inhabiting it, or the local residents.
Sons of the soil is a fundamental concept that binds people to their birthplace and confers some advantages, roles, and rights that others do not have.
The Doctrine of Discovery
It is a legal concept which allows European nation to claim any uninhabited territory that the state discovers. Indigenous leaders claim that the concept effectively served as justification for the annexation of their country and the frequent violation of treaty by European settlers. Canada offers an illustration of this (as discussed above)
When a landowner transfers the title to the land to a third party, it is referred to as alienation. When something is said to be alienable, it can be sold or transferred without limitations to another person.
India
History is believed to repeat itself. Schedule 6 was inserted into our constitution to make sure that comparable situations don’t arise. It provides for the governance of tribal regions, primarily in Assam, Meghalaya, Tripura, and Mizoram, in the seven sisters region of India. In accordance with Article 244(2) and Article 275(1) of the Constitution, this unique provision is offered. By creating autonomous district councils, it aims to protect the rights of the native population (ADC). ADCs are organisations that represent a district, and the Constitution grants them varied degrees of autonomy within the state government to enact laws that aim to safeguard their Dignity and Freedom in the areas of land, public health, agriculture, and other areas.
The process of including natives dates back to the British era, when the Constituent Assembly’s interim government of India constituted a subcommittee under the leadership of Gopinath Bardoloi, the first chief minister of Assam.
The group suggested creating autonomous district councils to give the indigenous population the proper local representation mechanisms. J.J.M. Nichols Roy led the push for tribal territories to have their own autonomous government in the Indian Constituent Assembly. The Assembly was informed by Roy, a tribal member from the Khasi hills in modern-day Meghalaya, about the concerns of hill tribes about residing in the newly established Indian State.
He suggested that the Sixth Schedule, which would grant them the right to self-governance in accordance with their customs, be created in order to allay their worries. He campaigned for the autonomy of the tribal peoples of northeast India before to India’s independence. Through his efforts, this was codified in the Sixth Schedule of the Indian Constitution following independence.
The constitution of india is the supreme law of the land. It is a living document and a permanent instrument which makes the government system work. It is indeed fascinating to know that the framers of the constitution had the foresight and they ensured that the roots or the native of our society are not only protected but also give them- the Dignity, Freedom, and Justice they deserve.
A clear success could be seen when Assam’s tea-tribe community erupted in joy with many breaking into the traditional dance after it became clear that Droupadi Murmu, a tribal leader of Odisha, is going to be the new President of the country.
Conclusion
It makes us ponder whether the Constitution makers had a premonition of the future. They certainly had a notion of the flow of events once submerged nationalities and communities asserted them. Hence this provision. A workable scheme for amending the constitutional provisions was assimilated to ensure the longevity of Constitutions. Indian constitution has been drafted considering the Indian reality and keeping in mind every minute conflict. The only intention behind these provisions is to safeguard the interest and aspirations of certain backward regions, to protect cultural and economic interests of the tribal people or to deal with the disturbed law and order in some parts.
Edited By : SAILBlogs Editorial Board
Society of International law and its Affairs (SAIL) 