Denotified Tribes Face Disproportionate Criminalisation, Discrimination In Jobs & Education : Justice PS Narasimha

On the occasion of Vimukta Diwas, Justice P.S. Narasimha delivered a lecture on ‘Justice For Marginalised In A Constitutional Democracy’.

Earlier, on August 30, Justice KV Vishwanathan delivered the keynote address on “Policing of Habitual Offenders: The Enduring Legacy of the Criminal Tribes Act in India” to commemorate the said ocassion.

Justice Narasimha commenced his lecture by giving a brief background on Vimukta Diwas. He talked about the enactment of Criminal Tribe Act, 1871(Act) and how certain communities were criminalised under this Act.

“Every person born in these communities were labelled as criminal and subjected to police verification, arrest, violence based on their birth. The Act continued to remain in force ever after independence. It was repealed only on 31st August 1952, when the so-called criminal tribes were de-notified. Therefore, Vimukta Diwas is celebrated as day of independence by people belonging to these de-notified tribes (DNTs).”

“In fact, it is for us to celebrate, more than them.”

However, Justice Narasimha pointed out that things don’t stop here because mere constitutional declaration is not sufficient. Thus, we must remember that legal reform and guarantee of legal rights does not mean that the discrimination faced by them has come to an end.

Historical Context of the Oppressive Law

Justice Narasimha said that to fully understand the origin of the Act, we must know two things. First, that the criminal activity was seen as biological and habitual in 19th century Britain. Second, is the imposition of this idea in the Indian context, which is that the Britishers understood India as a collection of castes where each caste was seen as a homogenous unit committed to a hereditary occupation.

These two assumptions of the Britishers on criminality and caste system formed the basis of the Act. James Fitzjames Stephen, who is credited for introducing Indian Penal Code, 1860 and Indian Evidence Act, 1872, reflected on these assumptions when he introduced the Act. Stephen said:

“When we speak of professional criminals, we mean a tribe whose ancestors were criminals from time immemorial, who are themselves destined by the usage of caste to commit crime, and whose descendants will be offenders”- James Fitzjames Stephen

Justice Narasimha marked that these words show a deep-rooted biasness of Britishers in criminalising these communities. He went on to say that the people who are labelled as being born criminals faced double discrimination as they were oppressed and ostracized by the social order due to the Indian caste system and at the same time by the legal order introduced by the colonial masters.

He further highlighted that criminalisation was not sudden in the case of these communities as history indicates that many of them participated in freedom movements. Also, certain indigenous communities revolted against British administration prior to the mutiny of 1857. Even in the mutiny Britishers saw these communities as facilitators of goods and weapons. Consequently, they sought to maintain law and order through extreme measures such as this Act. The Act empowered the local government to designate any tribe or class of persons as criminal tribe if they were “addicted to the systematic commission of non-bailable offences”.

The people of these communities were required to register themselves at local police stations and report there whereabout on daily basis and any travel or change of residence required official permission. “These communities faced not just discrimination but systematic control over their lives.”

Amendment and the subsequent repeal

Justice Narasimha drew attention on the fact that in 1897, the Act was amended, and the penalties were made more severe. Children between 4 and 13 years could be separated from their parents and placed in so-called reformatory settlements, which often resembled prisons. These settlement camps were sites of forced labour. Not only this, but the lives of hijras communities were also affected. Police would maintain a register of transgender persons who were suspected of kidnapping, castration and sexual activity that was penalised under Section 377 of the IPC. Further, police were entitled to do surveillance over these hijras persons who were prohibited from wearing female clothing and performing in public. Part II of the Act characterised the entire hijra community as criminal and deviant from the virtue of their own identity. This part however was repealed in 1911.

“We must recognise the oppressive effect of this law on them and their persistent association with criminality under several acts including anti-beggary and anti-sex workers law which is prevalent even as of today”, Justice Narasimha stated.

The Act was finally repealed in 1952, marking the critical step of acknowledging the injustice meted out to them. Justice Narasimha emphasised certain findings of the Ananthasayanam Ayyangar Committee in 1949 (it was based on the report of this committee the Act was repealed). The Committee found that the Act violated various constitutional promises of equality, freedom, liberty, dignity and the list go on.

What happens after the advent of the Constitution?

Under this head Justice Narasimha stated that the Constitution was formulated as a forward-looking societal blueprint carving out significant provisions of fundamental rights. These rights uphold the essential principles of freedom, equality and dignity of citizens.

“The drafters drafted an intricate framework that prioritizes the advancement of backward classes. The golden triangle of Articles 14, 19, and 21 embodies the value equality, liberty, freedom, life and dignity of all persons. These provisions guarantee equal rights to those belonging to marginalized communities.”

Further, he enumerated several other fundamental rights that act for the benefit of these marginalised communities.

“Within the equality provisions one of the most profound declaration is Article 17 which unequivocally abolishes untouchability. Article 46 serves as a bacon of hope charging state with the duty to provide special attention to educational and economic interests of these marginalised communities. Further, Article 15(2) embodies a fundamental principle of equality by ensuring that no citizen is subject to any form of discrimination solely on factors of religion, race, caste, sex, place of birth. Article 15(4) lays down a clear roadmap for their progress by providing specific provisions for their advancement. Article 16(4) provides for the affirmative action in public employment. For addressing human trafficking, forced labour, child labour we have Article 23 and 24. These Articles hold a particular significance to DNTs.”

Obligation of constitutional authorities to implement these provisions

At this, Justice Narasimha said that these are constitutional declarations and thus, it is the obligation of the constitutional authorities to translate our constitutional promise to reality. “In an unequal society the authorities are under an act of obligation to prevent any form of discrimination, it cannot be an excuse for the authority to say that the society is unequal and they are performing their role naturally.”

To support this, he quoted from Dr Ambedkar’s speech: “However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.”

Therefore, there is a great amount of responsibility on those who are occupying the constitutional positions and those who are in governance.

Constitutional Safeguards in context of DNTs

Our lawmakers and political leaders, at the time of independence, envisaged affirmative action and reservations as compensatory discriminations which is essential to undo the historical wrong faced by marginalised communities and to uplift them to an equal status as the majority. Social welfare also played a significant role in development of these communities. Even Ananthasayanam Ayyangar Committee placed responsibility on central and state government to provide welfare to DNTs.

The oppression and violence faced by these communities was brought up largely in the context of Article 19 (1)(d) which guarantees the right of freedom to movement. H.J. Khandekar, one of our constitutional fathers, was the only one who brought up this case in the assembly debates. He stated that the fundamental right of freedom of movement, is necessary to fight against the restrictions placed on criminal tribes under the Act.

What are the constitutional contemporary challenges?

Justice Narasimha also emphasised that the caste-based disadvantage faced by these communities was not explicitly addressed in the discussions on equality provisions.

Thus, one challenge is lack of consistency. Although some subgroups of DNTs are included in scheduled caste and schedule tribes, the lack of uniformity across states creates inconsistency. This lack of consistency has led to anomalies where tribes are classified differently in different regions. Such inconsistencies underscore the urgency to establish some kind of coherent and uniform classification system that ensures equitable treatment across nation. Even Bhiku Ramji Idate Commission took note of this situation and recommended the separate and explicit exclusion of DNTs in Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and within constitutional safeguards.

Another challenge is of disproportionate criminalisation. Some criminal laws are still used disproportionately to target the members of these communities. Laws like Habitual Offenders Act, Wildlife Protection Act, Indian Forest Act are deployed in a discriminatory manner.

Justice Narasimha averred that beyond these laws, DNTs also faced discrimination in education and employment. These tribes also face discrimination in education and employment. In this respect, he highlights the findings of the Ayingar committee which reported that employers did not employ persons of DNTs as they perceived them to be criminal nature. Even in education, they faced discrimination, which in turn hindered their academic performance.

Thereafter, he cited a report of the year 2017 which indicated that within the walls of educational institutions students from DNTs often found themselves marginalised and subject to neglect from teachers. This critical issue calls for need for comprehensive sensitisation programmes amongst educators and students alike. Further, an examination of DNTs education status show that around 61% of their members are illiterate.

After sharing the above findings of the report, Justice Narasimha stated: “While education holds the promise for transformation barriers like social discrimination, poverty and social oppression impede the children’s access to learning.”

Way Forward

Having talked about the repeal of the Act, new statutory regimes, he stated that there is more that needs to be done and it is beyond law. It is in the attitude, in our habit, in our approach. The higher obligation is on the communities who have had the larger benefits.

To bolster these points, he quoted the words of Dr Ambedkar:

“We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.”

Justice Narasimha explained that Dr. B.R. Ambedkar is talking about the trust and belief that we have in these three trinity. Fraternity is what enables the materialisation of society of liberty and social equality.

Efforts to make the legal profession more inclusive

He further averred that we must create spaces for students and professionals from marginalized communities in the legal fraternity. We must adopt steps to adequately represent marginalized communities in the bar and bench. At this, he congratulated the formation of CEDE. “These are the additional steps I am talking about in this speech.”

Imperatively, he suggested that every senior advocate should recruit and mentor at least one marginalized member in their chambers. However, such mentoring needs to be accompanied by some patience and dignity; otherwise, it will have a negative effect. This practice can be be institutionalized through regulations of the Bar Council of India. Till such practice is institutionalized, voluntary acts from the senior members of the bar can lead to major change as young professionals from marginalised communities whom we mentor today may become successful professionals in future and may even change the world.

Statistics show that only 80 out of 44043 applicants, who have applied for law clerks in a recent examination, were Schedule Tribes. “That is not even 2 percent. This shows that even at the stage of applications we are not able to reach the STs. This is a systemic problem.

Justice Narasimha concluded his lecture by emphasising on the need to take active efforts.

“We must make active efforts to ensure that the law does not remain profession of only certain communities who have been historically dominant and power controlling. By taking active efforts, we will not only recognise the social problem but also create structures of justice for marginalised. Unequal access to resources and opportunities have kept these communities trapped in the cycle of marginalisation and oppression that is difficult to make… Only when those in power and those not in power but sufficiently endowed make active steps to remove the barriers of injustice will the marginalized community retain their faith in the constitutional justice system.”

The video of the lecture can be watched here :