'Excessive Criminalization Has Led To Stigma Of Denotified Tribes' : Criminal Justice & Police Accountability Project

The Criminal Justice & Police Accountability Project (CPA Project) is a Bhopal-based litigation and research intervention project focused on building accountability against criminalisation of certain communities by the police and the criminal justice system. The project works at grassroot level focusing in specific locations, and particular communities across the state of Madhya Pradesh. These communities include those previously officially criminalised under colonial laws, now classified as Denotified Tribal (DNT) Communities as well as other communities that are similarly persecuted and stigmatised by the criminal justice system. In this two part series, we interview Nikita Sonavane, Ameya Bokil and Srujana Bej, lawyers and team members at the CPA project and discuss their work. In the first part we discuss the need of documenting and intervening against the disproportionate harm caused by the criminal justice system against marginalized castes and the harm caused by excessive criminalization. In the second part, we will discuss policing in the pandemic and the way-forward for Indian criminal justice system.

1. CPA project both through its research and litigation has brought focus to hitherto ignored issues of casteist disposition of Indian Criminal justice system. You have written that the colonial system has 'camouflaged and adapted itself to reify the caste system'. What is the aim of the Criminal Justice and Police Accountability Project? Please share with us the role of your project in documenting, researching and advocating against the caste injustice and discrimination continued through criminal justice system.

There are several communities across the country, known as the Vimukta''s or Denotified Tribes(DNT) who were classified as criminals by the British colonial rulers under Criminal Tribes Act (CTA), 1871. While the act was repealed in 1952 but working with these communities in Bhopal, we found that the label and stigma of criminality is still sustained in various ways by the criminal justice system. The criminal law and the criminal justice system has legitimised the disproportionate harm and targeting of these communities through law with the rationale of the same being found in the deeply violent Indian caste system.

The fundamental principle or the cardinal rule of criminal law is that everyone is 'innocent until proven guilty' but for the communities belonging to various oppressed communities like Vimuktas or jaatistai "other" tribal groups who fall outside of the caste system, there is a presumed criminality through various existing laws like state Excise Acts, Habitual Offenders provisions; Arms Act, 1959; and anti-gambling laws etc. And thus these communities continue to be criminalized and overrepresented in the criminal justice system as accused persons. The oppression of the criminal law against these communities is two fold, while on one hand we see their excessive targeting through these acts, on the other hand, in the instances of violence against these communities the same system refuses to take any action or provide redressal or any kind to them.

There has been criticism of the colonial tendencies of the Indian criminal justice system, largely through a reformist prism of making the system better, putting safeguards in place etc., but very little understanding and analysis has been undertaken of the fundamental ethos which were designed to bolster the caste system through criminal law and the justice system. Vimukta communities attained independence five years after the rest of the country and continue to face violence but with little acknowledgement or documentation of that violence.

In this process police play a key role as the first point of contact of the system. While the routine custodial violence, abuse of power and corruption within police machinery has been documented and demanded to be reformed, there is need of research, documentation, and litigation to question the casteist disposition of the police machinery. That is the gap CPA aims to fill. We further are attempting to orient our focus and reinvent our engagement on the fundamental questions on how and who we criminalize, how much discretion and powers the police have and how we look at the carceral and crime control model of our system because the system currently is running at expense of life and liberty of marginalized communities.

2. Similar projects in the United States have also brought focus on race and the criminal justice system. In the recently released Netflix Documentary 13^th, we saw that the American criminal justice system with 'war on drugs' and 'law and order' narratives have led to overrepresentation of African American community in the prison population in the US. Have they inspired your work?

The abolitionist and anti-carceral perspective have been advocated for long in the United States of America particularly after Black Lives Matter movement which in our opinion is the culmination of a similar kind of engagement of African American communities with the American criminal justice system. There is a realization that the system cannot be reformed if it is inherently violent and as long as this system exists, it will continue to be oppressive. Mere band-aid fixtures here and there will not help because even the reformed version will continue to be brutalizing. So yes, the advocacy in the United States did work as a reference point for us but in India the question of caste is far more complex than that of race. "Dalit and Bahujan communites are amongst lowest rungs of the caste system. Adivasis are altogether out of the caste system. They're all uniformly oppressed by the system, but there are specificities of that oppression that differ from one group to another. For instance the targeting of Muslim by the police is different from the way police targets the Vimukta.

3. As you shared that the criminal law has allowed continuation of stigamtization and discrimination against these communities through variety of ways- marking them as criminals, subjecting them to surveillance, unnecessary arrests etc. While colonial era had (now repealed) Criminal Tribes Act (CTA), 1871 etc, even today facially neutral law in their actual use target and harm Dalit-Bahujan and minority communities more severely. You mentioned some of them above, can you further explain how those legislations/substantial criminal laws have disproportionate impact on Vimukta .

These jaatis were denotified and decriminalised in 1952 but even if you look at the text of the Criminal Tribes Act, 1871, its provisions only provided for identifying and labeling certain communities as criminal but the process of building the so-called criminal identity and the so-called criminal modus operandi of the community is brought through provisions in other substantial criminal laws. The IPC sections relating to robbery, dacoity and theft have continued that labelling in their actual working. Almost like a default setting, the police would go to the bastis of these communities, picking up specific people from that community based on their surveillance networks, then subjecting them to extra judicial violence, gathering false confessions, or just filing false FIRs.

The Excise laws, anti-gambling laws and the Wildlife Protection Act, 1972 , although neutral and objective in their text, but in their actual operation the largest number of cases under these laws are against the Vimukta and other marginalized communities. For instance under the anti-gambling laws police have vast discretionary powers. If any police officer, upon credible information and after an inquiry, as he may think fit, has a reason to believe that a place is a common gambling house, he has the power to enter and search and indicate any instrument such as playing cards as gambling instruments, and the burden of proof is reversed. This means that the accused is required to prove that they are not guilty. Similarly, the Indian Arms Act, 1959 criminalises extremely common household objects, such as kitchen knives, anyone can be easily arrested for it. Even with the Wildlife Protection Act, 1972, the inclusion of specific species in the schedule is questionable - because these species may not necessarily be endangered but figure prominently in the lives, cultures and livelihoods of specific communities. A mere reading of the text of these laws would show that a lot of these activities which are actually being criminalised are activities that are predominantly practised in specific ways by certain marginalised communities.

And then comes habitual offender provisions in the MP Police Regulations which have created a vicious cycle of criminality for these communities. Rampant over-criminalization and vast discretionary powers leads to frequent arrest of members of these communities. The charges are false, the person would be acquitted but yet his 'criminal file' would keep getting bigger and bigger, ultimately lending him the label of 'habitual offender'. And just like that a person will have like six FIRs standing against him by different police stations. This tilts the scales of justice, even within the courts against them. Police maintain 'Habitual Offenders Registers' based on castes and community, allowing presumed criminality across the system.

Hence there is an overreach in terms of what is criminalized coupled with extreme discretion to police to decide how and against whom to enforce these laws. Essentially these extremely overbroad substantial criminal laws, which themselves are arbitrary, are being utilised in targeted ways against specific communities. Criminalization and enforcement both are the problems. The reason is that these laws and systems have been designed by the members of the communities who have a clear privilege and an interest in maintaining that privilege, either economic, social, cultural, or political.

Thus a vast majority of the prison population belongs to OBC, SC, ST or Muslim community. There is a very small population of prisoners that belong to communities of privilege. We have studied arrest records under these acts, the profiles of individuals who are criminalized under these acts, and we found that the representation of marginalised communities is disproportionate to their share in the population.

4. Criminalization apart from violation of liberty also leads to stigma and fear. What has been your grassroot experience of the kind of harm these laws have caused to the communities you work with?

The excessive criminalization has led to permanent stigma attached with these communities, leading to denial of employment opportunities. A person would be picked up overnight, spend a night in jail and now will have a criminal record leading to denial of job opportunities. And this means very real economic and social harm for an already marginalized group. Similar cases have also come up for children, who are being put in observation homes for smallest of things, and thus ruining their chances of continued education and a better future.

The tag of criminalization also leads to extensive surveillance. We've had people from these communities tell us that because they've spent X number of months in jail on very petty offences, say like alcohol possession or gambling on smaller loads, when they come back, they know that there is mukhbir or physical police surveillance. They tell us that they're scared to step out to even have a cup of tea with their friends at the local tea store. There is a very explicit sort of curtailment of liberties that comes with respect to, being wrongfully incarcerated, or spending time in prison even as an undertrial. But second level, there is also self-censorship that cannot be separated from state surveillance or state criminalization. Avoiding certain foods, avoiding certain kinds of public spaces, avoiding certain kinds of activities altogether- these are all self-imposed curtailments of one's liberties only because one is afraid of being targeted by the police or picked up as a result of police arbitrariness. Entire communities, not just the individual targeted suffer harm and live in permanent state of fear.

(Surbhi Karwa is an alumnus of National Law University, Lucknow and National Law University, Delhi. Rajesh Ranjan is founder of SocioLegal Literary and a student at National Law University, Jodhpur)