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Pathalgadi– Custom or a political tool?

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With the nod of Chief Minister of Jharkhand Sri Hemant Soren for withdrawal of cases related to FIRs lodged against Pathalgadi offenders, an obnoxious statement has been asserted by the incumbent government, which emphasizes on the principle of legitimizing and pardoning the perpetrators of heinous offences. The resolution contemplates withdrawal of cases against Pathalgadi supporters for offences under section 121, 121A, 123, 124A, 385,  302, 376 of IPC and other serious charges, which has been registered against them.

Legitimizing heinous offences under the garb of freedom of speech and expression and old customs has become fashion and forte of the Hemant Government. 

Let us examine the custom of tribals performing Pathalgadi and the propaganda of the supporters of Pathagadi before entering into the merits of the argument of withdrawal of cases registered against Pathalgadi supporters.

Aboriginal custom Pathalgadi illustrates of erecting stones plaques on the tomb of tribal people in Jharkhand. The same was performed to pay their homages to the ancestors and also for making and registering important decisions of the family in the said stones. Additionally and more popularly, Pathalgadi were performed in the villages by villagers to demarcate the ownership of the land and also the boundaries of the villages. With the efflux of time, the custom being ancient one, most of the tribals discontinued the customs in wake of modernization and other reasons. In fact, there is no document available on public forum in Jharkhand to recognize Pathalgadi as a custom of tribals. A discontinuation to custom and its usage brings an end to a custom. The co-habitants of village i.e. sadans (local non- tribals) also performed Pathalgadi, only with an idea of demarcation of villages which also has been relinquished by them, a long back.    

With promulgation of Panchayat (Extension to Scheduled Area) Act, 1995 (PESA Act), misconstruing the provisions of the Act and customs, the soul of Pathalgadi was distorted and re-introduced to fit an oblique political motive by an Voluntary retired IAS officer Late BD Sharma who was charged of serious corruption cases. It is also a matter of fact that neither BD Sharma belonged to tribal family nor a permanent resident of Jharkhand. The distorted version of Pathalgadi does not welcome any outsiders, this person, being an outsider re-introduced a custom which does not welcome outsiders, giving an evil shape to the customs. Isn’t hypocrisy died at that juncture?     

In 2017-18, a baptized tribal from Gujarat, Yusuf Purty and his associates pledged also propagated the distorted version of Pathaldadi in order to incite and provoke violence mainly with the sole aim to throw challenge to the sovereignty of the country. The distorted version of Pathalgadi were performed in the districts of Khunti, Seraikella, Singhbhum and many other districts of Jharkhand erecting the structured stone at various villages, inscribing therein that stone creates demarcation and has been laid down in accordance with the provisions of the Constitution, reference were made to PESA Act, Schedule V, Article 13(3), Article 19 and Article 244(1) of Constitution of India.

The dictum were that beyond the stone planted for demarcation, only the rule of tribal Gram Sabha shall be followed and in accordance with Article 19(5)(6) of COI, entry of outsiders not having primitive faith shall be prohibited  including Central or State authority. The leaders promoted and propagated the idea of destroying the individual identity card, ration card, BPL Card, Bank Pass Book and other documents amongst the tribals. The villagers were compelled to destroy these items failing which there were threatened to be eliminated and socially boycotted, resulting to mass exodus in the affected villages. One who opposed the idea were butchered, murdered and women being raped also. It subjugated the idea of creating their own law, their own Army, their own bank, own judiciary and also their own mechanism to run the system, meaning thereby under the garb of the protection of the Constitution of India the supporters challenged sovereignty of India and attempts were made to destroy the ideals of Constitution of India and create a civil war like situation. It justified killings and rapes on account of violation of Pathalagadi rules.

Few disturbing incidents require its place in this article to understand the ramifications and repercussions of this seditious movement. On 19th June, 2018 five girls were gang raped at Kochang Bazar Tand, Khunti, who came along with Sister Ranjeeta and Sister Vinita of an NGO, ‘Asha Kiran’. An NGO purportedly espousing their cause against human trafficking. These five victims were part of Nukkad Natak Team came to perform and spread awareness against human trafficking. Both Sisters of Asha Kiran went to the school run by R.C. Church and soon after, the five victims were abducted with the aide of Father Alfanso Aind and gang raped.

Furthermore, the victims u/s 164 Cr.P.C. stated that “the wrong doers warned them that since you are agents of the Government and you have violated Pathalgadi rule by entering into the premise, therefore, you all must face the consequences and thereafter they were brutally raped, filmed and their private parts were stabbed by wooden sticks. When the victims came back from the place of incident the Father of the church namely Alfanso Aind threatened them of not disclosing the incident to anyone otherwise they would be eliminated. The incident was condemned by Sri Kariya Munda, then Member of Parliament of the said constituency and former Deputy Speaker of Lok Sabha. On 27th June, 2018, the house of Sri Kariya Munda was raided and three police personnel were abducted by the supporters of Pathalgadi. The main accused were Emil Waltor Kandulna, J. Vikash Kora mostly coming from Christian community.

In the case of gang rape committed at Kochang Bazar Tand, the Sessions Court of Khunti vide order dated 8th May, 2019 found guilty and convicted Fr. Alfanso, Johan Jonas Tiru, Junas Munda and three other accused who all comes from Christian community.

In the case of ransacking of house of Sri Kariya Munda, quashing petition was filed by the aforesaid accused, which was dismissed by the Hon’ble Jharkhand High Court vide order dated 22nd July, 2019. Appeal were preferred before the Hon’ble Supreme Court and the matter was taken on 27th January, 2020 and plea has been taken by the accused that the present government has brought an resolution withdrawing all the cases in relation to Pathalgadi. Most of accused hailed from Christian Community.

The Hemant Government announced of withdrawing of criminal cases related to Pathalgadi movement and within a fortnight i.e. on 19th January, 2020, seven tribal villagers were beheaded and brutally murdered by Pathalgadi supporters for opposing their idea of Pathalgari in Burugulikela village of West Singhbhum district. On 23rd February, 2021 Pathalgadi bid was made outside Jharkhand High Court premises by as many as hundred supporters, however, the same were stopped by police personnels.  The stone erected stated that 12 districts including the State capital Ranchi comes within Scheduled Area and  executive power of State of Jharkhand does not extend to scheduled area and therefore, there is no right to freedom for general public in these scheduled areas and the law of the Gram Sabha shall be followed.

Going into the old rituals and customs of performing Pathalgadi one can understand that the same was performed by the tribals for demarcation of ownership of their land and their villages. It was also utilized for paying homages and respects to their ancestors. Preserving and protecting the rituals and customs of the tribals is also an essence of the Constitution which cannot be denied, however, giving a complete misinterpretation to the old forgotten customs and the constitutional provisions, a challenge has been thrown to the sovereignty of the nation. Even going by the idea of these purported supporters of Pathalgadi one would decipher that Pathalgadi is performed to preserve and protect the culture of the tribals, then how would the Church and missionaries come within the purview of the culture of the tribals and are to be referred as primitive culture? Since, churches and missionaries are alien and not a subject matter to the customs and traditions of tribals.   

Interestingly most of the supporters are Christians and a culture alien to the land is not being opposed by the Pathalgadi supporters, which itself indicates that missionaries are working hand in gloves in creating a civil war like situation in State of Jharkhand? The Soren Government who has tasted the success in 2019 Assembly elections had the fortune and support of these Pathalgadi supporters who has nexus with missionaries and Maoists. The whole idea behind Pathalgadi is to throw challenge to the sovereignty of the nation. The act of withdrawing these contemptuous and seditious cases which are heinous in nature and runs from abducting police personnel to ransacking house of public representative to gang rape and gruesome murder would be pardoned with a stroke of signature of the Chief Minister. However, the conscious application has to be made by the Public Prosecutor and superintendence decision has to be taken by the Sessions court u/s 321 of Cr.P.C.  The cases which cannot be compounded/ compromised under Section 320 Cr.P.C are withdrawn, under what authority of law?

In assessment, I find substance in suggesting that Pathalgari movement was an alternative attempt of resurgences to Maoist movement, on account of success of anti-maoist operation. Huge funds were pumped in, with unknown source of income. Ideally, Maoist and Missionary funds were diverted to ignite the movement.

In conclusion, it is pertinent to refer the recent constitutional bench judgment of Hon’ble Supreme Court observed in Chebrolu Leela Prasad Rao vs State of A.P., the power guaranted under the provision to Fifth cannot override the fundamental rights of other citizen. So what were the reasons to misconstrue and misinterpret the provisions of the Constitution to suit the version of seditious act? Law not being a general subject, question must be asked as who were behind erecting the stones mentioning provisions of law? No to demean anyone, it is nearly impossible for general rural masses to mention the law, leaving behind giving interpretation of law.   

In withdrawal of criminal cases, the dictum of Sheo Nandan Paswan case passed by the Hon’ble Supreme Court, has not been followed by the State Government. The power of withdrawal of criminal under Cr.P.C has been entrusted into the wisdom of Public prosecutor and not the Government per see. The withdrawal of cases seems more of a political stunt than anything more. It is worthwhile to mention that more than 1800 cases of rape have been registered in the reign of Soren Government. I would not be surprised if the present government also withdraws these cases. With the decisions of withdrawal, bloods are on the hands of Soren Government. The victims will never forgive the present regime.     

Kumar Harsh
Advocate
Jharkhand High Court

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