“Criminality Or Criminal Tendencies Have Nothing To Do With Religion, Caste Or Creed Of Any Human Being” - Justice Abhay S. Oka

The Criminal Justice and Police Accountability Project (CPA Project), in association with LiveLaw, organized the 'Annual Vimukta Divas' lecture titled “Indian Constitution & Denotified Tribes” on 22nd September 2024. The keynote address was delivered by Justice Abhay S. Oka, Judge of the Supreme Court, to commemorate the 72nd year of repealing the Criminal Tribes Act, 1871. Vimukta Diwas is celebrated on 31st August every year to commemorate the repeal of the Criminal Tribes Act, 1871 and denotification of the communities—'Vimukta' meaning liberation from the shadow of the Criminal Tribes Act.

The Criminal Tribes Act, 1871 was enacted by the British colonial administration, stands as one of the most oppressive laws of its time. It branded several nomadic and semi-nomadic tribes along with other oppressed caste communities as “hereditary criminals addicted to the systematic commission of non-bailable offences”. The law empowered the police with extensive powers of surveillance, compulsory registration, and resettlement. The Criminal Tribes Act Enquiry Committee that formed in 1949 advised repealing the Act as the law was incompatible with the principles of equality and freedom that underpin independent India. The draconian colonial enactment was repealed on 31 August 1952 and is celebrated by Denotified Tribal (Vimukta) communities as the day of their independence.

Despite the repeal of the CTA, the stigma of criminality follows Vimukta communities to this day. After the CTA was repealed, the practices of surveillance were quickly reinstated through habitual offenders provisions in state level police regulations and enactments. They remain in effect in most states even as of now.

Glimpse of past and present:

Justice Oka, addressing the lecture, expressed his deep concerns over the pernicious legacy of Criminal Tribes Act that continues to cast a long shadow, impeding the progress and hindering of Vimukta communities their socio-economic development, despite its repeal in 1952. The unabated continuation of stigma, discrimination and violence towards the denotified tribal communities is antagonistic and antithetical to the principle of equality, liberty and fraternity that are cordial to the Constitution of India.

Justice Oka underscored the orientalist biases in the making of hereditary criminals and enactment of the Criminal Tribes Act of 1871, and called it one of the most oppressive enactments of the British era. “These laws enabled the state to declare a large number of individuals belonging to a declared criminal tribe as criminals without any trial. These laws prevented these individuals from leading any kind of a dignified life instead they were kept under constant surveillance which prevented them from leading day to day normal life…..Thus by law the stamp of being criminal was put on millions without any basis.”

Justice Okaexplicating the lingering effects of the colonial law on the society at large and the criminal justice system in contemporary times, noted that ”75 years after coming into force of the constitution of India the stigma attached to the communities which were branded as criminal tribes under the 1871, 1911 and 1924 Acts have not completely disappeared. This is a huge challenge faced by our society and the justice delivery system. The mindset of some of the citizens has not changed. More importantly, the mindset of the law enforcing machinery, namely the police has not changed.” Justice Oka further highlighting the widespread impact of their historical criminalization and ongoing socio-economic challenges "It is said that more than 120 million persons have been included in the denotified tribes.”

Deep-rooted prejudices against denotified communities:

Justice Oka reflected on his personal experience to enunciate the prejudices against the denotified tribal communities that are inherent in the criminal justice system. The judge shared from his rich experience that “I have occasioned to see the copies of FIRs, especially relating to offences of robberies, I found that the community of the accused is mentioned, indirectly suggesting that the accused belongs to a community which is desribed as a criminal tribe.”

Despite the data generated by the courts that dispel the prejudice of co-relation between caste, religion, or community and criminality, the attribution of criminality to denotified communities by the police, criminal justice system and society at large is disheartening. “The functioning of the courts at various levels in Independent India has generated a huge amount of data….. From my experience what I learnt is that criminality or criminal tendecies have nothing to do with religion, caste or creed of any human being. Proper analysis of data regarding convictions in our country will definitely prove the hypothesis I just discussed. The hypothesis which I repeat - Criminality or criminal tendencies have nothing to do with religion, caste or creed of any human being.” Justice Oka condemned the practice of labeling entire communities as criminal, stating, “branding a community as a community of criminals is completely unconstitutional and is violative of Articles 14, 15, and 21 of the Constitution of India.” This declaration epitomizes the profound challenges inherent in associating caste, creed, or religion with criminality, as it goes against the fundamental guarantees of equality and personal liberty enshrined in the Constitution of India.

While discussing the fundamental principle of criminal law, the presumption of innocence, which is embedded in the fundamental right to personal liberty, Justice Oka highlighted the significant challenges faced by marginalized communities. He emphasized that their limited access to legal resources renders the presumption of innocence until proven guilty largely ineffective in practice. Justice Oka remarked, "The basic tenet of criminal jurisprudence, which was adopted, is that every person accused of a crime is presumed to be innocent until their guilt is established before a competent court beyond a reasonable doubt. The presumption of innocence can be traced to Article 21 of the Constitution of India, which guarantees personal liberty." He further noted, "Marginalized sections of society targeted by law enforcement agencies and the law enforcement machinery do not directly benefit from the presumption of innocence,” as they find it difficult to take recourse to available legal remedies. The structural social and economic inequalities inhibit the practical realization of fundamental legal protections “Most members of these denotified tribes are socially and economically backward. Thus when they suffer injustice at the hands of the law enforcing machinery , they find it difficult to get access to justice.”

Sensitisation and Economic and Social upliftment as panacea:

Enabling access to legal remedies and the sensitisation of the state actors are the need of the day to counter the legacy of CTA and marginalization of the DNT by the criminal justice system, according to Justice. Justice Oka. He underscored that “the first step which should be taken by those who are associated with the justice delivery system is to open the doors of the courts to these marginalised communities in its true sense.” and he unequivocally stressed that “there is a need to sensitise our police machinery through the police training institutes. We must sensitise members of the judiciary on this issue through judicial academies.”

He further emphasized on the “ need to create a very robust mechanism where data is generated in the public domain regarding arrests of persons belonging to marginalized communities and expressly those communities which are branded these draconian laws of 1871, 1911 and 1924 as criminals. This will enable the NGOs and the legal services authorities to immediately reach the affected persons and render legal aid to them. “

Another point Justice Oka considered necessary for emancipation of the DNT communities from the clutches of the enduring adversities of CTA and the historical injustices perpetrated against these communities under the British regime is to render economic justice to these communities by ensuring that they do not remain economically backward. They will be social justice only when the stigma attached to their community completely goes and is completely wiped out.

Despite more than seven decades of independence and a constitution that envisages justice, liberty, equality, and fraternity as cardinal principles, the plight of the denotified communities has not progressed. They face stigma and violence by the criminal justice system and society at large on a day-to-day basis. In this context, Justice Oka reminded that “Our constitution will be 75 years old on the 26th of January, 2025. Now the time has come to tell everyone to abide by the fundamental duty under the constitution of India, which is provided in Article 51A, which is the fundamental duty to abide by the Constitution and respect its ideals.”

Justice Oka commended the work done by the organizations fighting against state violence perpetrated against denotified communities “with a vision of creating the India that Dr. B.R. Ambedkar envisioned. As Dr. Ambedkar said, our battle is for freedom and reclamation of human personality.” Justice Oka further highlighting the importance of espousing the constitutional ideals by the young citizenry, urged that “if our constitution is to survive. If our democracy is to survive we need a large number of young people to stand by the constitutional ideals and work with the same spirit with which volunteers of this project are discharging their duties.”

Authors are lawyers associated with the Criminal Justice and Police Accountability Project ('CPA Project'). The CPA Project is a Bhopal-based research, litigation and advocacy intervention committed to ending the disproportionate targeting of oppressed caste communities by the criminal justice system.

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