Jharkhand Chief Minister Hemant Soren’s nod to withdrawal of cases related to the FIRs lodged against the Pathalgari offenders sets an obnoxious precedent, one that legitimizes and pardons the perpetrators of heinous offences. The resolution contemplates withdrawal of cases against Pathalgari supporters for offences under Sections 121, 121A, 123, 124A, 385, 302, 376 of the IPC and other serious charges.
Legitimizing heinous offences under the garb of freedom of speech and expression and old customs has become par for the course for the Hemant Soren government. But let us examine the custom of tribals performing Pathalgari and the propaganda of the supporters of Pathalgari before entering into the merits of the argument for withdrawal of cases registered against them.
The tribal custom of Pathalgari involves erecting stone plaques on the tombs of tribals in Jharkhand. It is a way of paying homage to ancestors. It is also done to announce important decisions in the family. Additionally and, more popularly, Pathalgari is performed to demarcate the boundaries of the villages. With the passage of time, most tribals discontinued the practice. In fact, there is no document available on a public forum in Jharkhand that recognises Pathalgari as a tribal custom. The co-habitants of the village, or sadans, (local non-tribals) also performed Pathalgari to demarcate the boundary, but they too have stopped this practice a long time ago. A discontinuation of practice brings an end to a custom.
In 2017-18, Yusuf Purty (aka Joseph Purti), a self-styled Pathalgari leader, and his associates distorted the tribal custom in order to incite and provoke violence, with the sole aim to challenge the sovereignty of the country. The distorted version of Pathalgari–erecting stone plaques demanding self-rule and declaring outsiders are not allowed without gram sabha’s permission—were performed in the districts of Khunti, Seraikela and West Singhbhum. The leaders promoted and propagated the idea of destroying identity cards like ration card, BPL card, bank pass book and other documents. The villagers were compelled to destroy these documents failing which there were threatened with social boycott, which resulted in violence and mass exodus from the affected villages. The self-styled Pathalgari leader also mooted the idea of creating a separate bank and a separate mechanism to run the tribal system under the garb of constitutional protection under Schedule V.
The disturbing incidents
Few disturbing incidents need to be mentioned here to understand the ramifications and repercussions of this seditious movement. On June 19, 2018, five women who worked with an NGO, Asha Kiran, were gang raped in Kochang village in Khunti district. These women were performing a nukkad natak at a missionary school raising awareness on human trafficking when they were allegedly abducted and gang-raped in a nearby forest. The head of the school, Father Alfonso Aind, was later booked for not reporting the incident.
Furthermore, the rape survivors under Section 164 of The Code of Criminal Procedure (CrPC) stated that the wrong doers warned them that since they were agents of the government and violated the Pathalgari rule by entering the premise, therefore, they must face the consequences. Consequently, they were raped and the act was filmed. The incident was condemned by Kariya Munda, then Member of Parliament, and former Deputy Speaker of Lok Sabha. On June 27, 2018, the house of Kariya Munda was attacked and three police personnel were abducted by the supporters of Pathalgari. J. Vikash Kora, Dharm Kishor Kullu, Emil Walter Kandulna and Ghanshyam Biruly were booked under sedition charges for allegedly inciting Pathalgari supporters to attack police officials through their Facebook posts.
In 2019, a district and sessions court sentenced six accused—Father Aind, Baji Samad alias Takla, Ajub Sandi Tirkey, Junas Mundu, John Jonas Tiru and Balram Samad—to life imprisonment in the gang rape case.
On the attack on Kariya Munda’s house and the abduction of three officers, the Supreme Court in January last year asked the Jharkhand government to clarify if it wants to withdraw the sedition cases against the four accused. The Jharkhand High Court in 2019 had declined to quash the charges against the accused.
Almost immediately after assuming charge as the chief minister of Jharkhand, Hemant Soren-led government’s first major decision was to withdraw the cases against those supporting Pathalgari. Less than a month after the announcement, seven tribals who opposed Pathalgiri were found beheaded in Burugulikela village in West Singhbhum district—the act was committed allegedly by Pathalgari supporters. Close on the heels of the incident, some protesters in February tried performing Pathalgari outside Jharkhand High Court, but were stopped by security personnel. The stone plaque stated that 12 districts, including the state capital Ranchi, fall under the Scheduled Areas and the executive power of the ‘State of Jharkhand’ does not extend to the Scheduled Areas and, therefore, there is no right to freedom for the general public in these Scheduled Areas.
What the law says
While the Constitution upholds preserving and protecting the rituals and customs of tribals, misinterpreting the customs and constitutional provisions to challenge the sovereignty of the country is unpardonable. The original idea behind Pathalgari has been hijacked by people with vested interests, with some even pointing fingers at the role of missionaries here. The act of withdrawing seditious cases, which are heinous in nature, by the Hemant Soren government is questionable.
One cannot deny the argument that the Pathalgari protests were an attempt to revive the Maoist movement, which has been almost crushed by our security forces. Huge funds from unknown sources were pumped to fuel the movement.
In conclusion, it is pertinent to refer to the recent constitutional bench judgment in Chebrolu Leela Prasad Rao vs State Of A.P., where the Supreme Court observed that the powers guaranteed under Schedule V cannot override the fundamental rights of other citizens. So, what were the reasons to misconstrue and misinterpret the provisions of the Constitution as seen in the case of the Pathalgari movement? It is hard to fathom that tribals, who like most Indians may not be well versed with laws and legal terminology, would think of subverting the law.
In Sheonandan Paswan vs State of Bihar, the Supreme Court has made it clear that the power to withdraw criminal cases under CrPC has been entrusted to the public prosecutor, with the consent of judiciary, and not the government, per se. Therefore, the withdrawal of cases by the Soren government seems more of a political stunt than anything else. It is worthwhile to mention that more than 1,600 cases of rape have been registered in the state during the rule of the Soren government. I would not be surprised if the present government decides to withdraw these cases too. On the Pathalgari cases, with its decision on withdrawing them, the government will have blood on its hand. The victims of the atrocities will never forgive them.