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Notes
1 Tribe, adivasi and indigene have been used interchangeably
for the same group, termed a tribe in colonial records but who
prefer themselves to be recognized as the adivasi or indigene
to assert their claim as the earliest settlers in India.
2 This essay is a modified version of a chapter from my booklength
work entitled From Village Elder to British Judge: Custom,
Customary Law and Tribal Society on the transformation of tribal
customs (Munda, Santal, Ho and Oraon of Jharkhand) into
customary law during colonial rule.
3 E. Hobsbawm and T. Ranger, The Invention of Tradition, Cambridge
University Press, 1996; A. Mukhopadhyay, Behind the
Mask: The Cultural Definition of the Legal Subject in Colonial Bengal
(1715-1911),Oxford University Press (OUP), New Delhi,
2006; N. Bhattacharyya-Panda, Appropriation and Invention of
Tradition: The East India Company and Hindu Law in Colonial
Bengal, OUP, New Delhi, 2008.
4 Oxford Advanced Learner’s Dictionary, Indian Edition, 1989, p.
294; Chamber’s 20 th Century Dictionary, New Edition, 1983, p.
309.
5 Legal and pre-legal distinction rests on the determinant that
law being the command of the state, legal societies are those
governed both by law and state, while the others, including
indigenous communities, are considered pre-state and therefore
pre-legal i.e. governed not by law but by their customs. It
is relevant to point out that, during the pre-colonial period, all
the four tribes of this essay were custom-governed although
the Munda and Oraon were under Rajputized Nagvanshi rulers
while the Ho and Santal were governed by their village
and supra-village social institutions.
6 E.R.HardyIvamy (ed.) Mozley & Whitley’s Law Dictionary,
Tenth Edition, Butterworths, London, 1988,p.123;A.S. Oppe
(ed.), Wharton’s Lexicon, Fourteenth Edition, London,1937, p.
292.
7 Salmond’s Jurisprudence, Chapter IX.
8 Hardy Ivamy, Mozley & Whitley’s Law Dictionary, p.123.
9 J. C. Jha, The Tribal Revolt of Chotanagpur (1831-32), K.P. Jayaswal
Research Institute, Patna, 1987, pp. 233-44.
10 Common law as generally understood “is a system of laws
that have been developed from customs and from decisions
made by judges” and not legislated by Parliament.
11 Salmond’s Jurisprudence, p. 209; Oxford Advanced Learner’s
Dictionary, p. 303.
12 L.I. Rudolph & S.H. Rudolph, “Barristers and Brahmans in
India: Legal Cultures and Social Change”, Comparative Studies
in Society and History, Vol.8, No.1, (Oct. 1965), pp. 33-38.
13 Jha, The Tribal Revolt, pp. 241-44; A.K.Sen, Wilkinson’s Rules:
Context, Content and Ramifications, Tata College, Chaibasa,
1999, pp. 24-37.
14 M. Chanock, Law, Custom and Social Order: The Colonial Experience
in Malawi and Zambia, Cambridge University Press, Cambridge,
1985, p. 47.
15 William Cavendish Bentinck was the Governor General of India
during 1828-35.
16 Thomas Munro was the governor of Madras Presidency.
17 E.T. Stokes, The English Utilitarians and India, London, 1959,
pp. 10, 15, 142.
18 Neeladri Bhattacharya, “Remaking Custom: The Discourse
and Practice of Colonial Codification”, in R. Champaklakshmi
& S. Gopal (eds), Tradition, Dissent and Ideology: Essays in honour
of Romila Thapar, OUP, Delhi, 1996, p. 48.
19 J. Hoffmann, & A.V. Emelen, Encyclopaedia Mundarica. Vol. IV,
Gyan Publishing House, New Delhi, 1998, p.1005; P.O. Bodding,
A Santal Dictionary, Vol. II, Gyan Publishing House,
New Delhi, 1999, 138; J. Denney, Ho Grammar and Vocabulary,
Xavier Ho Publications, Chaibasa, 1975, p. 132.
20 During 1859-95, the adivasis of Chotanagpur, led by their indigenous
leaders called Sardars, and reformers waged a fight
predominantly against zamindars (landlords imposed by the
British) to protect their land and forest rights. Known as Sardari
or Mulki Larai, this culminated in the more famous Ulgulan
or uprising (1895-1901) under the leadership of Birsa Munda.
21 Quoted in John MacDougall, Land or Religion? The Sardar and
Kherwar Movements in Bihar 1858-95, Manohar, Delhi, 1985,
p.63
22 P.O. Bodding (Translator), Traditions and Institutions of the Santals:
Horkoren Mare Hapramko Reak Katha, Bahumukhi Prakashan,
New Delhi, 1994, p.13.
23 Craven Settlement (CS), Village Enquiry Paper, Kaparsai, p.
31, Vasta (Bag) No (VN) 98. Another expression used was
“sabek”. Lomba Munda of Kamarhatu observed that, in the
village Maghe festival, celebrating together together was a
custom observed from olden (sabek) times. CS, Combined Title
Page and Fly Leaf, Serial 22, Mis Case No.351 of 1914-15,
Loba Munda of Kamarhatu’s Report against raiyats of
Kamarhatu for not helping Deori during Mage, Kamarhatu,pp.
1-5, VN 176.
24 Deputy Commissioner’s (DC’s Office), General
Department(GD), Revenue Branch (RB), Tuckey Settlement
(TS), Kolhan Settlement, Collection No III Settlement, File No
(FN) 5 of 1915, File Serial (FS) 15, BR Sulanki’s Note, para 2.
25 Government of Bihar and Orissa, Revenue Department, FN
S/6 of 1915, Nos 1-12, Resettlement of the Kolhan Government
estate in the district of Singhbhum, Serial No 6, Letter
No 17-215-5, dated 14 December 1914, from the Board of Revenue,
Bihar and Orissa, submitting proposals for the continuance
of the resettlement operations under the provisions of
the Chota Nagpur Tenancy Act, 1908, Appendix C,Copy of
Memorial presented by the Hos at Chaibasa 9 July 1914,pp.
28-29, paras 4,7.
26 See Ref 21 above.
27 B.R. Sulanki’s Note, para 2.
28 S. C. Roy, The Mundas and their Country, Asia Publishing
House, Calcutta, 1970, pp. 66, 238-41; L.S.S.O’Malley, Bengal
District Gazetteers: Santal Parganas (BDGSP), Logos Press, New
Delhi, 1999, pp.111-12; S. C. Roy, The Oraons of Chotanagpur,
Man in India Office, Ranchi, 1984, pp. 231-39.
D. N. Majumdar, A Tribe in Transition: Study in Cultural Pattern,
Longmans Green & Co., Ltd., (Calcutta, 1937), pp.60-5.
29 O’Malley, BDGSP, p.112; W.G.Archer, Tribal Law and Justice: A
Report on the Santal, Concept Publishing Company, New Delhi,
1984, pp.15-24.
30 Bhattacharya, “Remaking Custom”, p. 38.
31 L.S.S.O’Malley, Census of India, 1911,vol. V, Bengal, Bihar and
Orissa and Sikkim, part I, Report, Calcutta, 1913,Appendix,
pp. I-IV.
32 S.T.Cuthbert wrote “On halting at a village it was my practice
to send for the principal person as well as heads of each profession,
that I might question them as to the peculiar customs
prevalent in the villages, the rights of the peasantry…” cited
in S.C.Roy, “Ethnographical Investigation in Official Records”,
Journal of the Bihar and Orissa Research Society, Vol.VII, Part IV,
1921, p.29.
33 Bhattacharya, “Remaking Custom”, pp.47-50; Bhattacharya-
Panda, Appropriation and Invention of Tradition, pp.3-5.
34 Bhattacharya, “Remaking Custom”, p. 47.
35 Bodding, Traditions and Institutions, p.13; O’Malley, BDGSP,
pp. 90-3.
36 Lt. S. R. Tickell, “Memoir on the Ho desum (improperly called
Kolehan)”, Journal of Asiatic Society of Bengal , vol. XI, part II,
(1840), pp. 788 –808.
37 L.S.S. O’Malley, Bengal District Gazetteers: Singhbhum, Saraikela
and Kharsawan, the Bengal Secretariat Depot, Calcutta, 1910,
pp. 73 –7; O’Malley, BDGSP, pp.110-12..
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