The Madras High Court comprising of Hon’ble Justices S Nagamuthu and N Seshasayeerecently laid down alandmark judgment wherein they strongly questioned: the prejudice that people belonging to aparticular community will traditionally indulge in commission of particular type of crimes and the same could be inherited like family trade. The Division Bench went on to observe that;“Judiciary cannot afford to decide cases by tracing the criminal activities of the forefathers of the accused. Any finding of guilt based on no evidence but on communal considerations is unconstitutional. Let this be the last judgment ever written based on communal consideration”.This recent judgment is remarkably striking as it begs the question:how in an independent and democratic state,some communities are yet identified as hereditary criminals.
Historically the British regime, in order to safeguard their political hegemony, enacted draconian laws that declared certain tribes and communities in our country as habitual offenders and notified them as criminals. The Criminal Tribes Act, 1871 empowered the local Government to declare any tribe or gang or class of persons as a criminal tribe; apparently the purpose of the Act was to ensure peace, law and order by effectively controlling anti-social elements addicted to criminal activities. The law enforcement machinery amongst others, were granted with powers to maintain a registry of such tribes, to arrest without warrant, enforcere strictive movement to certain areas and insist on reporting at regular intervals.
The historical conceptualization of the Act is widely debated; whether the motive was a preventive legislation – aimed to political suppress or to exploit labour for private gain; it is suffice to say, classifying some tribes as criminals marked the beginning of social discrimination, economic oppression and political exclusion of these communities/tribes. It is despicable that the pernicious colonial legislation – the inherent suspicion and prejudiced mindset –is acutely widespread and deep-seated in today’s Criminal Justice System. Just imagine the plight if you are born into a community, which was historically disgraced and branded as criminals, and till date,continues to be ostracized, stigmatized and stereotyped by the mainstream society.
An estimated 160 communities (some reports indicate close to 200 communities) across the country have been branded as criminals under the Act; and even after its repeal in 1952, these tribes and communities continue to carry the stigma of criminality. Whilst abolishing the Act, Jawaharlal Nehru commented that, ‘the monstrous provisions of the Criminal Tribes Act constitute a negation of civil liberty. No tribe can be classed as criminal as such and the whole principle is out of consonance with all civilized principles’. Thus, these communities and tribes were officially denotified, and the term criminal tribes had to be done away with. However, unfortunately, with the introduction of legislations such as the Habitual Offenders Act and Prevention of Anti-Social Activity Act; and the prejudiced mindsets of the colonial myth prevailing strongly amongst the local administration and law enforcement machinery these denotified tribes continue to bear the brunt of harassment and violence.
It is argued that, the population of these tribes account for nearly 10% of the population including 198 tribes and approximately 1500 nomadic tribes. The 1931 census noted that even though these denotified tribes were not subject to social untouchability– as in the case of scheduled caste, these denotified tribes were the most oppressed of all. These denotified tribes are consciously made into easy targets; and every child born in these communities are perceived as prized trophies as they are falsely implicated to tally crime statistics in unresolved criminal cases – ranging from petty theft to murder to protect anti-social elements. Taking stock of the grave situation where a section of the population was subject to frequent police harassment; the Renke Commission as early as in 2008, amongst others, recommended for a revamp of the police-training module and called for massive awareness in the law enforcement as the police asserted these communities are criminals by birth. The tradition of branding denotified and nomadic tribes as born criminals is a travesty of justice; besides undue harassment merely on the basis of suspicion, they are also deprived of a dignified life with dignity. Appalling it is, that the anti-social legacy of the British and the culture of impunity of police sadly continue unabated.
In a first of its kind, the National Commission for Scheduled Castes commissioned a study in 2014 on alleged cases of police atrocities against the Kuravan communityin the state of Tamil Nadu. One of the three members of the special committee who undertook the study, Mr. V.A. Ramesh Nathan opined that,“there is a set pattern asKuravan men are taken into illegal detention only at night hours. On a frequent basis, they are picked up in groups, subjected to third degree torture and forced to give false confession statements for crimes they have not committed; the women are subject to untold verbal abuse and sexual harassment in front of their own family and some women have even attempted suicide. Worse is the plight of the young persons and children who are not spared, and as victims of physical and psychological abuse they drop out from school and live in constant threat of being nabbed as the next criminal”.
The lives of the denotified tribes is abysmal; their living conditions are below poverty line and they lack education, housing, employment, sanitation, decent and healthy living with clean drinking water and food. The Gvernment of India constituted a National Commission for Denotified, Nomadic and Semi-Nomadic Tribes in 2015, with a special mandate to assess the status, review progress of development and suggest appropriate measures for their upliftment. The lives of denotified communities is a concern for all with a right conscience; in this context, the Madras High Court’s momentous verdict reprimanding the traditional, colonial and regressive mindset of pinning of guilt based on communal considerations as unconstitutional is a welcome law. This celebrated judgment is a definite milestone that could ripple positive changes in the lives of the denotified and nomadic tribes who were victimized as community during colonial past and cut off from the mainstream citizenry of the country till date.
Monica Vincent is an analyst in Law and Public Policy, and a practising advocate at the Madras High Court and Madurai Bench.