Shadow Of Criminal Tribes Act 1871 Still Looms Large : Supreme Court Judge Justice KV Viswanathan

Justice KV Vishwanathan delivered the keynote address on “Policing of Habitual Offenders: The Enduring Legacy of the Criminal Tribes Act in India” to commemorate Vimukta Day(August 30). This day marks the repeal of the Criminal Tribes Act 1871 (Act). The Act was the most draconian law passed by the British colonial state, under which millions of nomadic and semi-nomadic communities were declared criminals and put under continuous surveillance, making their lives impossible. After the repeal of the Act in 1952, these communities were de-notified, and about 200 communities were included in Scheduled Tribe (ST), Scheduled Caste (SC), and Other Backward Caste lists.

At the outset, Justice KV Vishwanathan said that we must have these conversations because only then will we get to know the grotesque and horrendous nature of the Act. He said this Act attributed criminality at birth concerning certain tribes, mandated registration, and had provisions for conducting surveillance. Further, he highlighted that all of this was beyond any judicial oversight because the Act provided that nothing can be called into question by any court of law.

At this, he remarked that “the statue was not just an affront to the dignity of the members of the tribes, but in my opinion, it was an affront to all right-thinking members who inhabit civilized states.”

He said that even now, the evil shadow of the Act is looming large in the post-constitutional set-up; thus, we need to address them, and we cannot brush them aside.

The Historical Reason Behind This Act

In order to explain the historical reason, Justice Vishwanathan referred to the Bhiku Ramji Idate Commission. He told how a wrong historical notion of ‘crime is hereditary in nature’ was circulated in countries like Scotland and England. This theory led to the conception of this statute and the prevalent caste system in India.

Justice Vishwanathan read out specific relevant paragraphs from the commission, including this one:

“Thus, the category of the Criminal Tribe was born out of the Colonial British Government's misguided attempt to control Crime in India- by enactment of the Criminal Tribes Act in 1871. Through this as well as subsequent versions of the Act, the British branded nearly 150 communities as being criminal by birth. These communities were placed in settlements and were policed regularly. They were placed under constant surveillance and their movement regulated. This led to harassment, loss of livelihood and the denial of even the basic rights enshrined by law.”

Justice Vishwanathan elucidated that the idea was to brand people as criminals solely based on their tribes, leading to innumerable hardships. He further explained how a great historian, Dr. Majumdar, debunked the theory of hereditary crime and protested by saying that crime is a product of a bad environment and poor economic conditions.

After that, he referred to several provisions of the Act, including Section 2, per which:

“If the Local Government has reason to believe that any tribe, gang or class of persons is addicted to the systematic commission of non-bailable offences, may report the case to the Governor General in Council, and may request his permission to declare uch tribe, gang or class to be a criminal tribe.”

This would, in turn, act to the benefit of the executive as this would give them the power to take steps against these tribe members, including re-settling them.

Act Juxtapose to the Indian Constitution

Justice Vishwanathan stated that if the Act were to be tested in the post-constitutional era, it would fail on several grounds. To begin with, the Act impinged Articles 14 and 21 of the Indian Constitution. Therefore, we commemorate its repeal as one could not imagine such a statute existed. Further, the Act also allowed to take the fingerprints of these tribe members without any judicial oversight. This was manifestly arbitrary and in violation of the Right to Privacy.

Social Impact of the Act

Thereafter, he referred to certain findings of the Ananthasayanam Ayyangar Committee in 1949 (it was based on the report of this committee the Act was repealed) to highlight the social impact of this Act. He stated that the management turned out members of the tribe upon finding that they belonged to the tribe, which was branded as a criminal. Society as a whole treated them with humiliation, and several generations were made to carry this tag as a birthmark.

Moving forward, he also talked about the unsung heroes who clamored against the Act, highlighted the practical impact of the Act, and intervened in the parliament when the repealed Act was debated. These people distributed pamphlets and wrote about the same to spread awareness were visionaries and thought far ahead of their time. At this, he referred to the pamphlet circulated by Vennelakanti Raghavaiah. In the said pamphlet, it was mentioned that these tribes had to report to the police station, and police officials would further also conduct surveillance in the middle of the night, and if the members of these tribes were not found, then that itself was treated like a violation of the Act. This put tremendous stress, and in order to find a possible way out, these members used to sleep in the police stations so that police couldn't say that they were not available during the surveillance. Vennelakanti Raghavaiah called out and reprimanded this abuse.

Similarly, Dr. Pattabhi remarked about the treatment of these members "the very pigs and dogs are not treated like this."

Dr. Pattabhi also brought to attention that in police stations, the work of scavenging was only assigned to members of the criminal tribe. Whenever there was any paucity of scavengers, the police officials would convict them so they could do the business. Not only this, but police officials would also direct them to do their work at their homes.

Justice Vishwanathan emphasized how these instances are blood-curdling. He also stated that in the Ayyangar Committee’s report, apprehensions were made that this repealed statute would ake another form.

Habitual Offenders Act

At this stage, he talked about the Habitual Offenders Act, which certain states have enacted. "There are still statutory manuals that deemed the original tribes as habitual offenders because they were once notified and subsequently de-notified," Justice Vishwanathan stated.

He referred to the Regulation of MP jail manual, 1987, which provided that habitual offenders will also include any member of the de-notified tribe subject to the discretion of the State government. He also mentioned the suo motu intervention by the Rajasthan High Court of the prison manual that allotted jobs like cleaning toilets to only de-notified tribes. Subsequently, the manual was amended by the government.

Further, he said that the term, habitual offenders, is not defined, and lack of the same has not only led to the movement restrictions of de-notified tribes but they are also asked to provide security for good behavior. It is important to mention that certain empirical studies have backed this finding.

Justice Vishwanathan cited an article that was written based on authentic records to tell how police stations across India maintain registers of habitual offenders/ history sheeters and members of de-notified tribes communities are identified as habitual offenders. The article also mentioned how callously, based on these records, the tribe members are subjected to investigation. It is worth mentioning here that these registers are counted as informal records.

Further, Justice Vishwanathan referred to a passage from Ankush Maruti Shinde vs. State of Maharashtra which stated :

“It is to be noted that all the accused persons are nomadic tribes coming from the lower strata of the society and are very poor labourers. Therefore, in the facts and circumstances of the case, false implication cannot be ruled out since it is common occurrence that in serious offences sometime innocent persons are roped in.”

Renke Commission

By the end of his lecture, Justice Vishwanathan refered to the findings of Renke Commission. Inter-alia, the commission focused on how post-constitutional acts have adversely affected the livelihood of many de-notified tribes. He stated that the livelihood of many members depended upon traditional occupation; however, due to industrialization several of them have gone out of work. "Certain statutes that seem facially neutral are in the manner targeting de-notified tribes."

Suggestions

While concluding his lecture, Justice Vishwanathan presented some of his suggestions. Some of them are as follows:

1. Sensitizing the enforcement machinery so that, wittingly or unwittingly, the abuses of the Act are not allowed to permeate the present administration of criminal justice.
2. District Legal Services Authorities (DLSAs) should play more active roles. If, at the pre-litigation stage itself, DLSA can be activated and legal aid can be ensured, then the same can nip the violation in the bud.
3. The standing operating procedure can be formulated.
4. The greater proactive role of the State Human Rights Commission.
5. DLSAs and State Human Rights Commissions should even be allowed to audit the registers wherein records related to Habitual Offenders are maintained.
6. Cases of false implication should be strongly dealt with.

The lecture can be seen here.

Live updates of the lecture can be read here.