Ensure Denotified Tribes Aren't Arrested Arbitrarily: Supreme Court Directs Police

The Supreme Court has  directed the police to follow guidelines issued in Arnesh Kumar v. State of Bihar (2014) and Amanatullah Khan v. The Commissioner of Police, Delhi (2024) to ensure that members of Denotified Tribes are not subjected to arbitrary arrest.

"The Police is directed to follow the guidelines issued in Arnesh Kumar v. State of Bihar (2014) and Amanatullah Khan v. The Commissioner of Police, Delhi (2024) to ensure that members of Denotified Tribes are not subjected to arbitrary arrest," the Court directed in its judgment issuing directions against caste-based discrimination in prisons.

PIL filed by Sukanya Shantha, a journalist at The Wire sought directions for repeal of the offending provisions relating to caste-based discrimination in the State Prison Manual/Rules as violative of Articles 14, 15, 17, 21 and 23 of the Constitution. It was argued that the current prison framework in India is not adequate to deal with the caste-based discrimination faced by denotified tribes.

The petition raised the issue that denotified tribes are often referred to as habitual offenders because, at one time, the 1871 Criminal Tribes Act had designed "any tribe, gang, or class of persons" as "criminal tribes". The colonial powers essentially established that criminality was hereditary. 

Excessive power of arrest, surveillance, and stigma was exercised against them without any judicial review. The Court noted that the Criminal Tribes Act, by declaring them as born criminals, forced them to nomadism. It said: "By declaring them as born criminals and assuming that they are addicted to the commission of a crime, the Act restricted their life and identity in a negative way. The Act imposed unnecessary and disproportionate restrictions on their movement. It also took away the opportunity from them to settle in a place, as it was prescribed that they could be forced to move to another place decided by the government. This was forced nomadism."

It added:"The exercise of the power to arrest or detain may become reflective of a colonial mindset, if not exercised with caution. The misuse of the power of arrest not just violates rights, but it can prejudice generations of innocent citizens, especially marginalized communities such as the Denotified Tribes. Arrests can create a stigma of criminality if not done diligently. Innocent people, if arrested on the grounds of stereotypes and mere suspicion, may face barriers in securing employment and earning a dignified livelihood. Entering the mainstream becomes impossible when those who have suffered incarceration find themselves unable to secure livelihoods, housing, and the necessities of life."

In this regard, the Court has directed that the police must strictly follow the guidelines in Arnesh and Amanatullah. 

In Arnesh, the Court warned the police on misusing the power to arrest. A three-judge Bench adverted to the misapplication of the provision for arrest by the police and noted: "Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Code of Criminal Procedure. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public.

The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.” 

Whereas, in Amanatullah, the Court while deciding on a plea of AAP MLA Amanatullah Khan against the action of Delhi Police declaring him a 'bad character' by opening a 'history sheet' against him, held that children and his wife, against whom there was no adverse material, wouldn't be included in the 'History Sheet'.

As per this order, no details of any minor relatives should be recorded anywhere in the history sheet unless there is evidence that such a minor has afforded shelter to the offender. The Court also observed that the police authorities must exercise extra care and precaution to ensure that the child's identity is not disclosed in the history sheet.

The Court reiterated that “History Sheet is only an internal police document and it shall not be brought in public domain”. 

Other reports on the judgment can be read here.