CRIMINAL TRIBES IN INDIA: A CONSTITUTIONAL ANOMALY
Author: Abhijeeth S,
3rd year B.A. LLB,
School of Law, Christ (Deemed to be University).
Introduction:
De-notified, Nomadic and Semi-Nomadic Tribes (DNTs, NTs and SNTs) are some of the worst affected tribes in India in terms of development. A lack of understanding of their lifestyle and an overall general disregard for their protection and safety, make it all the more pertinent to pay attention to the Centre’s feeble maintenance of their livelihood. Among these tribes lies a specific sub-category of tribal communities termed as ‘Criminal Tribes’ and were subsequently denotified. This term was affixed to these communities in colonial India with the claim that individuals born from these communities are inherently criminals. The justification given was along the lines of the parents’ occupations, with our colonizers claiming that because certain children follow their parents’ occupations when they grow older, criminality was also considered an occupation and was therefore deemed to be a hereditary characteristic of a human being. This theory was of course flawed and disproved, with the Criminal Tribes Act, 1871, being replaced by the Habitual Offenders Act, 1952, a collection of State Acts that penalized repeat offenders of crimes and awarding them a higher degree of penalty. However, the stigma associated with these communities has continued to persist post the removal of the Act. Therefore, the author through the course of this paper will attempt to address the problems faced by the Tribes with regards to legislation and justify why the Constitution can provide a different form of affirmative action for their upliftment.
The History of Criminal Tribes in India and The Introduction of The Habitual Offenders Act, 1952:
The legislative stigmatization of Criminal Tribes began in the year 1793 with the advent of Regulation XXII,[1] where magistrates were allowed to imprison people from certain tribes and deemed their tribes themselves to be criminals. This was soon evolved into the Criminal Tribes Act, 1871.[2] The Act essentially stated that in certain circumstances, gangs and tribes themselves can be classified as criminals as a collective, with systems of registration put in place in order to reprimand any unruly behavior. This registration was to be done by the Local Government in power at the time.[3] The statute also termed the classified the transgender committee as criminals under Part II of the Act.[4] The 1871 Act soon underwent a facelift, and returned as a replaced Act in the year 1908, where the tribes could be monitored on suspicion of criminal activities.[5] The Act was then overhauled again in two different forms, the first being the 1911 Act, which criminalized tribes for the “systematic commission of non-bailable offences”;[6] and the second being the 1924 Act, which allowed for regulation and reformation of these tribes, however, still classified them entirely as criminal tribes altogether.[7] This also included several unfair punishments and convictions. The Criminal Tribes Act, 1924 was soon repealed by The Criminal Tribes (Repeal) Act, 1952 after the introduction of the Ayyangar Committee Report,[8] whose recommendations included the repeal of the 1924 Act due to the lack of socio-economic development of the people living in tribal communities. This allowed for the entrance of a successive legislation, which is the Habitual Offenders Act, 1952.
Prior to the introduction of the Habitual Offenders Act, 1952, several states had already implemented fragmented statutes that implemented Acts similar to the Habitual Offenders Act have already been implemented in India. These Acts include the Karnataka Habitual Offenders Act, 1961, and the Punjab Habitual Offenders (Control of Reform) Act, 1952. The Habitual Offenders Acts were created to penalize individuals who were repeat offenders, who committed the same crimes more than once, and gave them aggravated sentences for the commission of these crimes. The Tribespersons may not have been directly involved in the Act as a class of people to be persecuted, per se, but the stigma behind their existence as criminal tribes continues to exist.
Committees Constituted to Resolve the Problems Faced by DNTs:
Several Committees were constituted to identify and resolve the issues faced by the DNTs, NTs and SNTs. The work began first in the year 1882, where the Salvation Army International Heritage Centre Subject Guide on Denotified Tribes[9] attempted to assist members of Criminal Tribes by combating their apparent criminal tendencies and supporting their rehabilitation. The Vol. XXIX Report on the Settlement and Reclamation of Criminal Tribes of Marwar[10] was the next report that dealt with the surveillance of these tribes, with the officers capturing several individuals belonging to these communities for the commission of petty crimes. The next committee constituted was the Report on the Criminal Tribes Act Enquiry Committee, 1939,[11] which notified around 23 tribes and classified them as criminal tribes. The Report noted that the tribes have accumulated a pattern of passing on these tendencies from generation to generation.
The first committee to recommend any solutions came in the Criminal Tribes Enquiry Committee Report (1949-1950) or the Ayyangar Committee Report, which called for the immediate repeal of the Criminal Tribes Act, as it was fundamentally against the spirit of the Constitution of India,[12] which was soon followed by the Antrolikar Committee Report of 1950, which recommended a substantive analysis into the rehabilitation of the Criminal Tribes. 1953 then saw the appointment of the Kalelkar Commission, which divided these tribes into the monikers ‘Nomadic’ and ‘Semi-Nomadic’, so as to remove the monikers of ‘Criminal’ and ‘Ex-Criminal’ attached to their ancestry. The Report also claimed that they should be identified as ‘Denotified’.[13]
Several Commissions were further introduced, including the Lokur Commission of 1965, which investigated the misplacement of tribes between caste distinctions, and the Justice Venkatchaliah Commission of 2002, calling for the rehabilitation of these tribes, now referring to them as Vimukta Jati. The opted for structural mechanisms to solve the problems associated with the Vimukta Jati and opted for economic development.[14]
The final Reports created were that of the Technical Advisory Group (2006)[15], which formed the basis of 2008’s Renke Commission Report[16], both of which recommended several solutions, some of which include:
- Criminal Tribes and Ex-Criminal Tribes required amenities higher than that of Backward Classes to assist them in reaching the standard achieved by the latter themselves
- Identify educational and economic development schemes and other interrelated programmes
- Allow for the DNTs, NTs and SNTs to be part of the next census
These Reports preceded the final report issued by the Government under its most recent Commission, the Idate Commission Report. The Report recommended[17]:
- A Constitutional Amendment for allowing DNTs, NTs and SNTs as a third category after Scheduled Castes and Scheduled Tribes.
- Strong legal protection for the community and constitutional safeguards including the extension of the Prevention of Atrocities Act onto them
- The de-stigmatization of these Tribes through affirmative action.
This article will now attempt to constitutionally justify the need for this level of affirmative action for the Vimukta Jati.
The Constitutional Justification to Specialized Affirmative Action:
The theoretical justification to providing a separate form of affirmative action to individuals who belong to Criminal Tribes in India could be presented in the form of an answer to the question as to what the difference in lifestyle a regular tribesman faces and what a tribesman from a Criminal Tribe faces. The answer to this question is of course: stigma. The stigmatization of people from Criminal Tribes is very real, coming at the cost of development and social inclusion. Therefore, the legal question to answer that justifies their inclusion is whether or not Criminal Tribes in and of themselves, must be considered a class within classes. This is to be analyzed through an extensive analysis of Article 14 of the Constitution of India, and the classification of groups via intelligible differentia and reasonable nexus.
Article 14 protects the fundamental right of equality, granted to all persons in the country. The Article firstly, holds that the State cannot arbitrarily deny any person in this country, natural or legal, equality in the eyes of the law; secondly it holds that all persons are guaranteed equal protection under the law.[18] This interpretation of equality is directed towards the elevation and liberation of persons who have been categorically disenfranchised through social and economic circumstances in their time in the country.[19]
The definition of ‘equality before the law’ pertains to the denial of any special privilege to persons, by uncontrollable factors such as birth, gender, caste, class and religion. It is impliedly established that no person can be born equal. The Constitution, however, can grant the persons who are placed in a less equal position, to something equal on a fundamental platform. The concept of ‘equal protection before the laws’ is envisioned as being positive in nature, as opposed to the former being negative. It does not mean that all the persons in the country must be treated as equals under the same law, but rather that likes must be treated alike, or equals must be treated equally.[20] The Supreme Court held that the two distinct definitions cannot be meant to be the same thing, even if there is something common between them.[21] The former denotes the protection of all individuals under the laws and the latter denotes the equal treatment of equal individuals in the eyes of the law.
Classification under Article 14 must be done following the fulfillment of two established criteria: Firstly, there must be an intelligible differentia promoting this classification, wherein the class to be distinguished from has characteristics that clearly differentiate it from its general class. These characteristics must be non-arbitrary, genuine and non-evasive. Secondly, the differentia adopted must have a rational nexus associated with it and is an objective that must be actualized by the State.[22]
The circumstances surrounding the stigma associated with the Denotified Tribesmen fulfills the former criteria pertaining to intelligible differentia. Affirmative Action can be historically justified for Denotified Tribes due to the continual subjugation of their livelihood and lifestyle at the hands of the British and the lack of a legislative mechanism that enables these individuals to equal opportunity or at least treatment.[23] The rational nexus sought to be achieved by the enactment of this level of affirmative action is the fair treatment of these people.
Conclusion:
The harms that are endured by these Denotified Tribes are aplenty. The lack of their development in the country has them subject to undue forms of harassment and stigmatization. The Government must take note of their plight and provide a special form of affirmative action that allows for them to at least gain the same benefits and development that has trickled down to Scheduled Tribes that have a lesser form of stigma. This paper has achieved this understanding through the conceptualization of the Articles and its application to the aforementioned circumstances.
[1] Idate Commission Report, Pg. 26, http://socialjustice.nic.in/writereaddata/UploadFile/Idate%20Commission.pdf
[2] The Criminal Tribes Act, 1871, http://ccnmtl.columbia.edu/projects/mmt/ambedkar/web/readings/Simhadri.pdf
[3] §.2, The Criminal Tribes Act, 1871, http://ccnmtl.columbia.edu/projects/mmt/ambedkar/web/readings/Simhadri.pdf
[4] Part II, The Criminal Tribes Act, 1871, http://ccnmtl.columbia.edu/projects/mmt/ambedkar/web/readings/Simhadri.pdf
[5] 1’he Criminal Tribe Act (Act XXVII of 1871) Muslims and Crime: A Comparative Study, by Muzammil Quraishi, Ashgate Publishing, Ltd., 2005. ISBN 0-7546-4233-X. Page 51
[6] Crime and Criminal Tribes Act, Pg. 105, https://shodhganga.inflibnet.ac.in/bitstream/10603/25615/9/09_chapter%202.pdf
[7] Id. at 107
[8] Report, The Criminal Tribes Act Enquiry Committee (1949-1950), https://www.indianculture.gov.in/flipbook/575
[9] The Salvation Army International Heritage Centre Subject Guide, Denotified Tribes, https://www.salvationarmy.org.uk/sites/default/files/media/1._denotified_tribes.pdf
[10] Idate Commission Report, Pg. 37, http://socialjustice.nic.in/writereaddata/UploadFile/Idate%20Commission.pdf
[11] The Criminal Tribes of India, K.M. Kapadia, Vol. 1, No. 2 (1952), pp. 99-125 (27 pages)
[12] Postcolonial penalty: Liberty and repression in the shadow of independence, India c. 1947, Mark Brown, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5414894/
[13] The First Backward Classes Commission, https://shodhganga.inflibnet.ac.in/bitstream/10603/34466/7/07_chapter%2002.pdf
[14] Idate Commission Report, Pg. 40, http://socialjustice.nic.in/writereaddata/UploadFile/Idate%20Commission.pdf
[15] Id at 40
[16] Renke Commission Report, http://socialjustice.nic.in/writereaddata/UploadFile/NCDNT2008-v1%20(1).pdf
[17] Supra 1 at 116
[18] Constitution of India, Article 14
[19] Secretary HSEB v. Suresh, AIR 1999 SC 1160
[20] Jagannath Prasad v. State of Uttar Pradesh, AIR 1961 SC 1245
[21] Sri Srinivasa Theater v. Government of Tamil Nadu, AIR 1992 SC 1004
[22] Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873
[23] Indra Sawhney v. Union of India, AIR 1993 SC 477
