Mainstream, VOL LII, No 8, February 15, 2014
Tribal Women and Customary Law: A Focus on the Santal Tribe
Monday 17 February 2014#socialtags
by Ivy Imogene Hansdak
The recent incident in Birbhum, West Bengal —where a 20-year old Santal girl was allegedly gang-raped by over ten men of her own village on the orders of a tribal court for refusing to end her sexual relations with a non-tribal man of the Muslim community—has brought to the forefront an emotive issue regarding unions between tribal women and non-tribal men. In this process, an earlier assumption that women in tribal societies enjoy a higher social status as compared to those in caste societies is also being questioned. Here it is worth noting that this assumption had been based on earlier studies that used reference points such as the tribal women’s physical mobility, choice of marriage, divorce and remarriage, access to property and resources, etc. Ironically, these same factors had also led to increased unions between tribal women and non-tribal men.
It is against this backdrop that recent studies have traced the large-scale alienation of tribal land in Jharkhand to increased marriages between tribal women and non-tribal men. As Virginius Xaxa writes, “One of the ways by which non-tribals are acquiring tribal land is by marrying tribal women. In view of the fact that there is a restriction on the alienation of land from tribes to non-tribes, such methods have become fairly pronounced in areas like Jharkhand.” [“Women and Gender in the Study of Tribes in India”, Women’s Studies in India: A Reader, (ed.) Mary E. John, Penguin Books, Delhi, 2008, p. 480]
Virginius Xaxa goes on to say that such women are seen not only as aligning themselves with the Dikus (non-tribal Hindus) but also as conduits of land transfer from tribes to non-tribes; he adds that after such transactions, non-tribal men often desert their tribal wives. He concludes that since such unions tend to jeopardise the land, demography and cultural identity of tribal communities, they have led to “...conflict and tensions between tribes and non-tribes, as the former mobilise against such marriage alliances. At times even coercion and intimidation have been used against young women who are being courted by men of non-tribal origin.” (Ibid.)
So the pertinent question here is: does there exist a history of violent opposition to such unions among the Indian tribes or is the Birbhum incident an aberration? Since the woman in this case belongs to the Santal (Santhal) tribe of Eastern India, this paper will focus on the Santal customary law with regard to minor and major crimes concerning women. One of the earliest books on Santal customary law is L.O. Skrefsrud’s Horkoren Mare Hapramko Reak Katha (a verbatim recording of the words of a Santal guru, named Kolean Haram, by L.O. Skrefsrud: Benagaria Mission Press, 1887), translated as Traditions and Institutions of the Santals by P.O. Bodding (1942: reprinted by Bahumukhi Prakashan, Delhi, 1994). The tribal justice system has also been extensively studied and docu-mented by W.G. Archer in his book, Tribal Law and Justice (1946; reprinted by Isha Books, Delhi, 2013)
Santal customary law is the result of a collective process of decision-making, in which the Manjhi or village headman consults with officials of his own village and, in some cases, with the Manjhi and officials of other villages, before pronouncing a suitable punishment. The Manjhi is responsible for maintaining the village common property, including the Manjhi-than or founder’s shrine and the Jaher or sacred grove. He ensures that all the festivals are performed with due ceremony. In case of an epidemic, he arranges for special sacrifices to be performed by the Naeke. Whenever a dispute arises over some offence committed by a villager, he calls a village meeting and presides over its discussions. At the end of the meeting, he pronounces a judgement based on his interpretation of “the sense of the village”. (W.G. Archer, ibid., p. 22) The Manjhi is assisted in his work by the Paranik, the Jog-Manjhi, the Jog-Paranik and the Godet. While the Paranik is the deputy headman, the Jog-Manjhi is the custodian of morality. In L.O. Skrefsrud’s words, “This official acts as custos morum to the young people of the village. His duty is not to prevent illicit relation between the two sexes when unmarried (except when they are non-marria-geable relatives) but to see that no scandal arises... During the Sohrae festival, the village boys and girls live for five days and nights with the jogmanjhi, who is responsible for their behaviour.” (cited by W.G. Archer, ibid., p. 22)
As for the other officials, the Jog-Paranik is the deputy to the Paranik, while the Godet is the headman’s messenger. Besides these five officials, there is the Naeke or village priest, who performs the religious rituals required to propitiate the principal Santal deity, Maran Buru, and the household and other spirits called Bongas.
The first court in the tribal justice system is the village community, which is presided over by the Manjhi. This decides most matters of the village, including illicit sexual relations within the community. It is worth noting that illicit relations between willing partners within the tribe are usually considered minor offences and punished with a fine that goes to the village. However, when a boy forces himself on a girl who is unmarried, part of the fine is paid to the girl or her father as “lajao marao” or compen-sation money. W.G. Archer has commented on the “lajao marao” in this manner: “What are the rights of an unmarried daughter in her own person? We have seen that until her marriage she is the property of her father and it is he rather than the girl who is responsible for breaches by her of the tribal code. If she is the victim of force, however, it is either the girl herself or her father who can claim damages. These are known as la jao marao (sic)....” (W.G. Archer, ibid., pp. 110-111)
While the terms “rape” and “gang-rape” are not used by W.G. Archer, a few cases cited by him seem to have belonged to that category of crimes. In all these cases, the girl herself had complained to the Manjhi and been paid the “lajao marao” as damages. On the brighter side, however, it must also be admitted that such girls rarely bore the stigma of rape and usually managed to get married to another boy. Similarly, an unmarried girl who became pregnant either married the father of the child or managed to buy another boy who married her or gave his name to the illegitimate child. Hence, honour killings and suicides by rape victims were virtually non-existent among the Santals. In the matter of marriage, Santals have a wide range of choices: besides the standard form of marriage called Dol Bapla, there are other accepted forms such as the Iputut or forcible marriage by sindur, the Or Ader or marriage by capture, the Nir Bolok or marriage by intrusion and the Apangir or elopement. In most cases, the matter is settled amicably in the village meeting and the boy is accepted by the girl’s family after the Gonon Pon or bride-price is paid.
Besides the first court of the village community, a higher court also exists that is composed of the neighbouring community of five villages. This higher court is called the More Manjhi. Only two kinds of illicit relations are considered serious enough to call for the meeting of the More Manjhi and can even lead to Bitlaha or ‘outcasting’ by the entire neighbouring community. These crimes are sexual relations with a non-tribal and sexual relations with a non-permissible relative (either a close kinsman or a person from the same sept). One of the earliest references to ‘outcasting’ appears in Traditions and Institutions of the Santals: “Only because of two crimes the ancestors have made it a rule for us to outcaste people, viz., sexual intercourse with people of another race or with a non-permissible relative. If anyone misbehaves in such a way, the village headman calls the headmen of the neighbouring villages together and informs them. If it is proved, they inform the people of their respective villages saying to them: Don’t eat and drink with so and so, or don’t in the meantime get into marriage relations with them; otherwise you may be burnt by the same fire.” (L.O. Skrefsrud, op.cit., p. 84)
The ceremony of Bitlaha has been studied in minute detail by W. G. Archer. This usually begins with social ostracism by the village and the imposition of a fine; if the culprits defy the decision of the Manjhi and fail to mend their ways, it culminates with the defilement of the culprits’ houses by a large army of Santals from the neighbouring villages. In all cases of ‘outcasting’, the decision of the Manjhi is ratified by the More Manjhi and sometimes also by the Bir Sendra or Annual Hunt. The first step in the Bitlaha ceremony is to get the sanction of the community. The Manjhi informs the Pargana or chief overlord and asks him to summon the More Manjhi. If the More Manjhi is in agreement with the Manjhi on this matter, a date is fixed for the Bitlaha ceremony. Then the branch of a Sal tree, whose leaves have been stripped to indicate the number of days left for the Bitlaha, is sent to every village. This is called the Dharwak and it is taken around by the Jog-Manjhi of every village. W.G. Archer describes the Dharwak in these words: “One of the leaves is folded into a cone to symbolize the penis and another is pinned into a groove to represent the vagina.” (W.G. Archer, op.cit., p. 390) The Dharwak has two main purposes. Firstly, it announces the Bitlaha and summons the people to the ceremony. Secondly, it becomes a potent symbol of the illicit sexual act, which is degraded by being symbolically displayed to the public where it is greeted with taunts and derisive laughter.
When the time of the Bitlaha approaches, the crowds start assembling in the village. There are songs and dances, often of a lewd nature. The Dihri or President of the Hunt arrives and the assembly takes on the nature of a hunting party. The men advance in dancing lines to the roll of drums, singing hunting songs. The Manjhi meets them holding aloft a Sal tree branch with the leaves sewn to represent the male and female genitals. He leads them through the village slowly. When they reach the culprit’s house, the Sal tree branch is fixed on the roof, while the dancers enter the courtyard and defile it by urinating on the walls. The shouts of the dancers and the drum-beats increase the fury of the act. Then the dancers leave the house and a sacrifice is performed by the Manjhi to Maran Buru and one of the Bongas.
When a Hindu or Muslim boy is caught in an intimate relationship with a Santal girl, the Bitlaha acquires another character. Santal feelings of dislike for the Dikus (Hindu non-tribals) and Jolahas (Muslim non-tribals) have been fed by many poignant tales of migration; hence, if any Santal girl ventures to become friendly with a Diku or Jolaha, her integrity is generally questioned. If she is caught copulating with a Diku or Jolaha boy, both of them are usually thrashed and then brought to a village meeting. A heavy fine is imposed on their families and they are set free after the payments are made. Sometimes, the girl’s family may intervene and say that she is ‘dead’; then, a funerary feast is held and the Diku/ Jolaha lover is set free. In cases where the boy’s family fails to pay the fine immediately, the Bitlaha is performed at his house. Here, the defilement is done by urinating and defecating in the courtyard, sometimes also by hanging bullock’s hoofs or pig’s trotters to the roof. Otherwise, the non-tribal’s property is usually not damaged.
W.G. Archer explains the Santal attitude to Diku Bitlaha by quoting the words of a Santal: “Dikus are grasping and full of greed. They despise Santals utterly. Therefore when Dikus steal our girls and make their caste go bad, we foul them in return. We punish them so that they will feel the shame and never do it again.” (Ibid., p. 416) What about the Hindu and Muslim attitudes to Bitlaha? W.G. Archer points out that the leaders of both communities adopt an attitude of tolerant neutrality and even condone the Bitlaha because it prevents their young men from straying. (Ibid., p. 415) According to a survey done by W.G. Archer, at least twenty-one Diku/ Jolaha Bitlahas were conducted between 1920 and 1945 in the Santal Parganas. (Ibid., pp. 435-436) None of them led to communal violence.
Since the 1950s, the Bitlaha has gradually died away. Yet, illicit unions between tribal women and non-tribal men in the Santal Parganas have increased. The Manjhi-Pargana system seems to have lost its earlier mechanisms for dealing with the aggressive Diku who steals tribal girls and ‘makes their caste go bad’. In this situation, vigilante groups have appeared that mete out rough justice to wayward Santal girls caught with non-tribal men. There could be many factors behind the erosion of the traditional Manjhi-Pargana system amongst the Santals: the influence of missionaries on converted Santals, the introduction of the new Panchayat system by the Indian Government, the large-scale migration of Santals as labourers to West Bengal and Assam, etc. Moreover, in West Bengal, the Youth Club system introduced in rural areas has also shifted the centre of power from the traditional village councils to the youth leaders. It is noted by Tonol Murmu, a social activist based in West Bengal, that the Manjhi-Pargana system in the southern Santal territories has evolved along a different trajectory. He says that in these areas, it has strengthened itself against the onslaught of Dikus by re-organising in a hierarchical pattern. A detailed analysis of the phenomenon, however, is beyond the scope of this paper. (Tonol Murmu, Prosongo: Lalgarh, Lokayata Sahitya Chakra, Kolkata, 2010)
When compared with the Chotanagpur region of Jharkhand, it is found that illicit unions between tribal women and non-tribal men are widespread also among the Oraons and other tribes of the region. Moreover, besides acquiring control over tribal land, non-tribal men in Chotanagpur have been utilising bank loans through their tribal wives. Muslim men have entered into polygamous marriages with tribal women where she becomes the ‘second wife’, and shares her income and property with the first (Muslim) wife’s children. It is to be noted that the non-tribal man in the Birbhum case was not just a Muslim but also had a Muslim wife. To sum up, in the light of these facts and the history of tribal opposition to such unions, it may be concluded that the Birbhum case is not an aberration. Rather, it highlights the internal tensions being felt by many tribal societies of contemporary India on issues relating to land alienation, demography and cultural identity.
Ivy Imogene Hansdak is an Assistant Professor, Department of English, Jamia Millia Islamia, New Delhi.