Tendency To Treat Members Of Denotified Tribes As Habitual To Crime Or Having Bad Character Reinforces A Stereotype : Supreme Court

The Supreme Court has held that the Model Prison Manual, 2016 and Model Prisons and Correctional Services Act, 2023 are inadequate to address the issue of caste-based division of labour, segregation, and discrimination against denotified tribes as they employ vague language leading the authorities to declare persons as habitual offenders merely on the ground of suspicion.

This is in the context of the prison manual/rules which treat denotified tribes as habitual offenders of crime or having bad character.

Declaring that discrimination against identified tries is prohibited under the ground of "caste" in Article 15(1), as the colonial regime considered them as belonging to separate hereditary castes, the Supreme Court said: "The tendency to treat members of denotified tribes as habitual to crime or having bad character reinforces a stereotype, which excludes them from meaningful participation in social life. When such stereotypes become a part of the legal framework, they legitimize discrimination against these communities. Members of the denotified tribes have faced the brunt of colonial caste-based undertones of discriminating against them, and the prison Manuals are reaffirming the same discrimination."

This is the first time, the Supreme Court has comprehensively dealt with the history and issues of denotified tribes including discrimination faced by them in prisons. 

A bench headed by the Chief Justice of India, and comprising Justices J.B. Pardiwala and Manoj Misra stated that Section 2(12) of the 2023 is problematic as it defines habitual offenders means a prisoner who is committed to prison repeatedly for a crime.

It held: "The phrase “committed to prison repeatedly” is vague and over-broad. It can be used to declare anyone as a habitual offender, even if they have not been convicted for a crime. The Model Act also provides that “habitual offenders” may be housed in a high-security prison."

It observed that the provisions of the 1871 Act were based on a stereotype which considered several marginalised communities as born criminals.

Under the Criminal Tribes Acts, of 1871, the government was empowered to declare any community as "criminal tribes". The Act allowed the local government, with due permission of the Governor General in Council, to designate any “tribe, gang or class of persons” as “criminal tribes” if they were deemed to be “addicted to the systematic commission of non-bailable offences”. Upon authorization of the Governor General, the local government would publish the declaration of criminal tribes in the local gazette in form of a notification.

It said: "While enacting the Criminal Tribes Act, the British directly applied the logic of caste, in courts, they facilitated caste oppression directly or indirectly."

The Court said: "The Act, further, subjected the criminal tribes to heightened surveillance, as their movements were frequently and closely monitored. It also led to social discrimination, as it imposed a stigma of born criminality. At the same time, it gave extensive powers to local village headmen (generally higher caste) to collaborate with the police to report their movements. The Act was also based on a stereotype and further reinforced that "eunuchs” are suspected of kidnapping or castrating children. Thus, the impact of CTA was discriminatory and punitive."

The Court held that declaring them as born criminals amounted to forced 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."

The 1871 Act gave extensive powers to any police officer, or village watchman to arrest without warrant a person of a designated criminal tribe, if they move beyond any prescribed limits of residence without a pass.

On this, the Court remarked: "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 context, the Court has directed the police 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.

In Amanatullah, the Court held that that no details of any minor relatives, i.e., son, daughter, or siblings shall be recorded anywhere in the History Sheet unless there is evidence that such minor, has or earlier had, afforded shelter to the offender.

In pre-independence India, several Indian States had enacted their own local laws for the surveillance of criminal tribes. For instance, according to the Criminal Tribes Manual of Gwalior, an individual from a criminal tribe could be convicted with rigorous imprisonment for up to one year, if he kept an arm or “means of locomotion such as horses, ponies, camels, donkeys, bicycles”.

Eventually, the Government of Independent India appointed The Criminal Tribes Act Enquiry Committee” under the chairmanship of Ananthasayanam Ayyangar which noted that "criminality is not hereditary." Subsequently, the Act was repealed in 1952. 

The criminal tribes were then denotified, as a result of which they are known as "Denotified Tribes." The Court said: "It must be noted under the Criminal Tribes Act, several marginalized “castes” were also declared as criminal “tribes”. It is for this reason Article 341(1) of the Constitution employs the words “castes” and “tribes” while defining the Scheduled Castes. After the repeal of the Act, some of the castes earlier declared as criminal tribes, have been accordingly notified as Scheduled Castes." 

After the repeal of the 1871 Act, most States enacted new habitual offenders laws and adopted identical definitions of 'habitual offenders' referring to a person who has been sentenced on conviction for at three occasions to a substantive term of imprisonment for any or more of the specified offences.

However, despite this, some prison manual/rules referred to 'habitual offender' to mean members of denotified or wandering tribes. Or an indirect reference is often made to denotified tribes. For instance,  Rule 404 of the West Bengal Manual provides that a convict overseer may be appointed to be a night guard provided that “he does not belong to any class that may have a strong natural tendency to escape, such as men of wandering tribes”.

The Madhya Pradesh Manual permits the classification of habitual and non-habitual criminals, where habitual criminals are described as someone who “is by habit member of a gang of dacoits, or of thieves or a dealer in slaves or in stolen property”, even if no previous conviction has been proved.

As per Rule 411 of the Madhya Pradesh Manual, 1987, any member of a denotified tribe may be treated as a habitual criminal, subject to the discretion of the State Government.

The Court has directed the Union and States to definite 'habitual offenders' in accordance with the legislation enacted. In case, there is no habitual offender legislation in the State, the references to habitual offenders directly or indirectly, as discussed in this judgment, are struck down as unconstitutional.

The Union and the State governments are directed to make necessary changes in the prison manuals/rules in line with this judgment.

Other reports about the judgment can be read here.