Wounds Of Draconian 1871 Criminal Tribes Act Not Completely Healed Even After 75 Years Of Constitution: Justice Abhay S Oka

"Even though more than 70 years have passed since the repeal of draconian Acts, the 1871 Criminal Tribes Act, its adverse effects continue to haunt us every day," said Justice Abhay S. Oka during a lecture organised to celebrate 'Vimukta Diwas'.

Justice Oka was speaking at a lecture titled 'Indian Constitution & Denotified Tribes' to mark Vimukta Diwas celebrated on August 31 to create awareness about the Denotified Tribes (DNT). The online lecture was organized by Criminal Justice and Police Accountability Project.

Certain tribes including nomadic and semi-nomadic tribes were termed as criminals under the Criminal Act of 1871, introduced in British India. This was inspired by Prevention of Crimes, 1871 which intended to control the movement of Gypsies in England. The 1871 Act was repealed through the Habitual Offenders Act,1952, thereby de-notifying all tribes (DNTs).

Speaking on these after-effects of the draconian laws, Justice Oka continued: This is a lesson we learnt in independent India. Therefore, those who believe in Constitutional ideals must always be on vigil and they should make sustained efforts to make sure our legislature does not come out with any draconian law."

He added: "After effects of any draconian law continue for years. For generations after generations, members of marginalised communities who were victims of 1871 Act continue to suffer from after effect of laws."

The colonial laws provided extensive powers of surveillance of these communities, compulsory registration, and taking fingerprints, to the police with no rights afforded to those criminalized for questioning these provisions. Post-Independence, an Enquiry Committee set up to review the act recommended its consequent repeal in 1952. But the spectre of the 1871 Act remains, haunting members of DNT to this day.

Under the 1871 Act, there was a provision to prepare a register containing names of persons declared as criminal tribes. The local government could exercise drastic powers of confining them to a particular place.

Justice Oka remarked that these laws enabled the State to declare a large number of individuals of declared criminal tribes as criminals without holding any trials. He said: "These laws prevented the DNT from leading a dignified life. They were kept under constant surveillance which prevented them from leading day-to-day normal law."

He added: "By law, a stamp of being criminal was put on millions without any basis. We must remember it took five long years after independence to repeal such draconian law. After 31 August, 1952, some classified as criminal tribes were included as DNT."

Justice Oka pointed out that even after the repeal of the draconian laws and 75 years of the Constitution, the stigma attached to the communities branded as criminal tribes has not completely disappeared. He said: "Most members of DNT are still socially and economically backward. When they suffer injustice at the hands of law enforcing machinery, they find it difficult to get access to justice."

He added: "This is a huge challenge faced by society and the justice delivery system. The mindset of some citizens has not changed. More importantly, the mindset of law enforcing machinery, police, has not changed."

Speaking from his personal experience, Justice Oka stated that in FIRs relating to the offence of robbery, to this date, the community of the accused is mentioned. He said: "This indirectly suggests he belonged to a community described as criminal tribes... scars of injustice and injuries which remains continue to affect and deprive this community of the right to live with dignity under Article 21."

Justice Oka pointed out that even though the basic tenet of criminal jurisprudence is a presumption of innocence which is traceable to Article 21, "marginalised sections of society targeted by law enforcement agency and machinery do not greatly benefit from the presumption of innocence."

Explaining this, he said: "The main reason is that they find it difficult to take recourse to available remedy."

Suggest a recourse to this, he said: "Therefore, the first step for those associated with the justice delivery system is to open the doors of courts to these marginalised communities in its true sense. It will enable them to easily access legal remedies. The task has to be undertaken by legal service authorities. Given the State has the responsibility to ensure that marginalised sections of society are provided smooth access to justice."

He also added that there is a need to sensitize police machinery and judiciary through police training institutes and judicial academies respectively.

Emphasising the need for a data-driven approach, he averred: "The functioning of courts at various levels in independent India has generated huge data. I am not an expert on the subject of data analysis. As judge of three constitutional courts for 21 years, I was lucky to have dealt with a large number of criminal matters. From my experience, criminality or criminal tendencies have nothing to do with religion, caste, or creed of human beings. Proper analysis of data of convictions in criminal cases will proof this hypothesis."

He remarked: "Branding a community as a community of criminals is completely unconstitutional, being violative of Articles 14, 15, and 21 of the Constitution of India."

"Unfortunately, even as of today, there is an attempt on a part of many to brand certain marginalised sections of society as criminals. Due to this tendency, we are creating a situation in which those who are not criminals and those who do not intend to do crimes will be forced to do something illegal only for their survival," he added.

Concluding his lecture by reiterating the ideals of the Indian Constitution, Justice Oka said: "Our Constitution will be 75 years old on 26 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 clause a of Article 51A,i.e, to abide by the Constitution and respect its ideals. It is not necessary for anyone to read entire Constitution consisting of 395 Articles and 12 Schedules to understand what are the ideals of our Constitution. Anyone will understand the ideals of the Constitution by reading its Preamble. It tells us everything. Our ideals are Justice-Social, Economic and Political, Equality of Status, and Dignity of Individuals. Even to think a particular community is a community of criminals is completely contrary to the ideals propagated by the Constitution."

Justice Oka suggested: "We need to create a robust mechanism under which data generated on public domain regarding arrests of persons belonging to marginalised communities and especially those communities which were branded under these draconian laws of 1871, 1911, and 1924 as criminals. This will enable NGOs and legal services authorities to immediately reach the affected persons to render legal aid."

"No member of such communities should be permitted to languish in jails only because of the stamp put on the community. The aim of the Constitution is to provide social, economic and political justice to all. Therefore, the injustice done to these communities in the British regimes can be redeemed only if we are able to render economic justice by ensuring they don't remain economically backward. They will get social justice only when stigma attached to the community is completely wiped out, Justice Oka concluded the lecture.

The event can be watched here.