Branding Person To Be Born A Criminal And Treating It As A Hereditary Phenomenon Was Born Out of Some Wrong Historical Notions: Justice Vishwanathan

31st August this year marks the 71st year of repeal of the Criminal Tribes Act, 1871 (CTA). A number of communities belonging to the Denotified Tribes celebrate this day as Vimukta Divas, the day of independence from the CTA, until its repeal in 1952.

On the eve of this day the Criminal Justice & Police Accountability Project in association with Live Law organized a Vimukta Day lecture by Justice KV Viswanathan, Honourable Judge of the Supreme Court, on “Policing of ‘Habitual Offenders’: the enduring legacy of the Criminal Tribes Act in India”.

The CTA criminalized several nomadic, semi-nomadic and other tribes including children from these communities, by naming them as hereditary criminals “addicted to the systematic commission of bailable offenses”. The colonial law provided extensive powers of surveillance of these communities, compulsory registration, taking fingerprints, to the police with no rights afforded to those criminalized for questioning these provisions. Post-Independence, an Enquiry Committee set up to review the act recommended its consequent repeal in 1952. But the spectre of the CTA remains, haunting members of Denotified Tribes to this day.

Speaking to the operation of the colonial law, Justice Viswanathan remarked that “Under Section 3 (of the CTA), any tribe, gang or class of persons who was (believed to be) addicted to systemic commissioning of offenses, could be notified. All on subjective satisfaction, a recommendation will go from the local executive head that this tribe is to be notified.” He noted that the underlying rationale of the Act was based on “the colonial government’s obsession to order Indian society and the racist approach which was then prevalent. Branding a person to a born criminal and treating it as a hereditary phenomenon was born out of some wrong historical notions (...) which have been debunked as arising from a product of bad environment and poor economic condition.”

In his lecture, Justice Viswanathan mentioned how the Act of 1871 came into being, the surveillance mechanism employed by the colonial state and the underlying rationale and finally how even after 71 years since the act was repealed, the Vimukta community is facing similar persecutions.

Surveillance Mechanism

The Judge highlighted the practical realities of the legislation and its impact at the time it was in effect, quoting an Assembly Member from Madras Province, V Raghavayya, “ (...) tribes had to report to the police stations, and also powers of surveillance, the executive machinery would in the middle of the night go for surveillance through roll calls and if they were not found that itself was treated as a violation of the act.

Now this put a tremendous stress on the individual, no what did they do, they decided that the best way to be not subjected to a false roll call or false reporting was to just go to the police station or the police patil’s house an just sleep there in groups so that you can’t say that i wasn’t available when you came for surveillance. This is unimaginable.” He noted how the Supreme Court in Ankush Maruti Shinde v State of Maharashtra, had granted review petitions (against conviction) on the basis that members of nomadic communities were frequently roped in for investigations despite no involvement.

Constitutional Touchstone

What if the Act was tested on the constitutional parameters? Justice Viswanathan juxtaposed the post-constitutional scenario with Victorian era morality, mentioning how the act sought to label entire communities as criminals and how it would be violative of Article 14 today. He remarked on the tenability of the surveillance allowed by the CTA, saying “fingerprinting, if today you were to test it (against) both the Puttaswamy judgments(...), with no judicial oversight and no control, it is a serious invasion of right to privacy also. So the Act was clearly unconstitutional, thus we are commemorating its repeal.”

He also quoted Balkrishna Renke Commission report, “The livelihoods of many members of the DNTs depends on several occupations which are termed as traditional occupations, however, due to the impact of the industrialisation (...) the change in laws particularly the Forest Act, Wildlife Protection act and the Excise Act, has affected the denotified, nomadic and semi-nomadic communities by denying them access to resources to which they have traditional rights and deprived them of livelihoods infact made them criminal overnight without offering them any sustainable alternatives.”

Post-Repeal

Justice Viswanathan reflected upon the post-repeal scenario and the CTA’s legacy. He referred to an MP, Shri R. Velayudhan’s speech about the repeal of the act and warned “let not the House go away with the impression that 4 million people have been liberated by the repeal, (it) may come in another form later on. This is the concern (...) that is being highlighted and it is better that we as a legal community, sociologists are accosted of this so it can be addressed.”

He went on to add how multiple states enacted Habitual Offenders legislations giving the same extensive amount of power to surveil and control. He mentioned in reference to Section 100 of CrPC, “the Executive Magistrate is empowered to order a security to be furnished from a habitual offender who is residing within his jurisdiction. The habitual offender is not defined, (but borrowed from state-level statutes, for instance), the Madhya Pradesh Jail Manual 1987, explicitly provides that habitual criminals will include any members of denotified tribes, subject to the discretion of the state government concerned.”

He referred to the organizer’s research to quote, “Police stations across India maintain registers for habitual offenders, also called history sheeters in their jurisdictions with extensive details of their lives and daily movements. While their identification may not be explicitly based on caste, collective police action overwhelmingly identifies members of DNTs as habitual offenders.”

Lastly, Justice KV Vishwanathan also put up some suggestions to address the issue of criminalisation. He highlighted the need for sensitizing the enforcement machinery so that the abuses (of the CTA) are not allowed to permeate the present administration of criminal justice. He noted that the District Level State Authorities should play a more active role because the earliest point that the abuse can be checked is at the police stations. If, at the pre litigation stage itself, DLSAs can be activated and legal aid can be ensured, then the same can nip the violation in the bud. He noted that any cases of false implication should be responded to strongly and noted that DLSAs and Human Rights Commissions should be allowed to audit the HO registers till such time a final solution is to be found. Justice Viswanathan ended his lecture by stating, “There is no dispute on this fact that the CTA was draconian (...) and several people have been liberated and that liberation should not just be in letter, it should operate in its true spirit.”