There's a complex situation brewing South Andaman and perhaps this will finally allow us to confront some tough legal questions that we have left unanswered till now. The Andaman and Nicobar Islands are one of the Union Territories of India and they lie approximately 150 Kilometres north of Indonesia. In fact, geographically they are closer to Burma than they are to India in terms of distance and ethnically the islands have been settled by populations from the Indian mainland.
The islands are also home to a series of scheduled tribes that have so far been one of the world's last set of uncontested peoples — the Jarawa with their limited interaction with the Government of India and the Sentinelese people who have hardly interacted with the Government of India at all. On paper, all these people are Indian Citizens. But are they subject to Indian Law? This is a social, moral and legal question that needs to be addressed very carefully.
This morning'sNew York Times reported that a baby had been killed on the Jarawa Reserve and the alleged killer was a member of the tribe. It goes on to contend that the killing was sanctioned by tribal law but it raises a moral question, should the Government of India go ahead and prosecute this killing?
The Jarawa are the original inhabitants of the Andaman Islands and have had little or no contact with outsiders for over thousands of years. Their's is a civilisation that originates in the Paelolithic era and they are a Schedule Tribe by Virtue of the The Constitution (Andaman and Nicobar Island) Scheduled Tribes Order 1959.
But are they subject to Indian Law? India is a common law country and the common law applies to us via the Doctrine of Reception. When the British Annexed India in the year 1857 all English law except laws that were in conflict with existing Indian law automatically applied. This is why the young Indian Parliament had to repeal a bunch of redundant British laws including Magna Carta in 1960 (See The British Statutes (Application to India) Repeal Act, 1960)
The Doctrine of Reception essentially deals with the application of the law of the Mother Country (in the case of Indian Common Law, England would be the mother country as a result of colonisation) to the newly acquired territory. In the case of the Andaman Islands India (historically British India) would be the mother country. The acquisition of territory could be done in three ways:
a) By Right of Conquest
b) By Treaty
c) By Occupation of land already not occupied.
Neither of these three will apply to the Jarawa lands in the Andaman Islands. There is no treaty with the Jarawa relinquishing their sovereignty neither have they been subdued by conquest. It can be argued that Indian law has not been received by the Jarawa and the Jarawa retain what is known today in modern legal terms as Tribal Sovereignty. The occupation (or Settlement) of the Andamans happened via just by people turning up and taking over the place and pushing the tribals out to the west of the Andaman Island. The existing Jarawa administration was displaced, rather than actually acquired.
While a the counter argument can be made that Constitutional Supremacy requires that the Jarawa be subject to the Constitution, the question: "Does the Constitution actually apply to the Jarawa?" remains unanswered. On paper they are Indian Citizens, but in reality, they seem to be nothing more than a nation that India happens to protect. There was no Jarawa in the Constituent Assembly, they do not enjoy a right to education and I do not think there has been a single Indian Passport or ID card ever issued to any member of the Tribe.
These questions will need to be resolved going into the future and their resolution must be a delicate one that takes into account a variety of interests including the right of the Jarawa to self determination. The rights of many indigenous people could turn on how the Government of India decides to handle this murder.