Denotified Tribes Face Disproportionate Criminalisation, Discrimination In Jobs & Education : Justice PS Narasimha

On the occasion of Vimukta Diwas, Justice P.S. Narasimha delivered a lecture on ‘Justice For Marginalised In A Constitutional Democracy’.Earlier, on August 30, Justice KV Vishwanathan delivered the keynote address on “Policing of Habitual Offenders: The Enduring Legacy of the Criminal Tribes Act in India” to commemorate the said ocassion. Justice Narasimha commenced his lecture by giving a brief background on Vimukta Diwas. He talked about the enactment of Criminal Tribe Act, 1871(Act) and how certain communities were criminalised under this Act. “Every person born in these communities were labelled as criminal and subjected to police verification, arrest, violence based on their birth. The Act continued to remain in force ever after independence. It was repealed only on 31st August 1952, when the so-called criminal tribes were de-notified. Therefore, Vimukta Diwas is celebrated as day of independence by people belonging to these de-notified tribes (DNTs).”“In fact, it is for us to celebrate, more than them.”However, Justice Narasimha pointed out that things don’t stop here because mere constitutional declaration is not sufficient. Thus, we must remember that legal reform and guarantee of legal rights does not mean that the discrimination faced by them has come to an end. Historical Context of the Oppressive Law Justice Narasimha said that to fully understand the origin of the Act, we must know two things. First, that the criminal activity was seen as biological and habitual in 19th century Britain. Second, is the imposition of this idea in the Indian context, which is that the Britishers understood India as a collection of castes where each caste was seen as a homogenous unit committed to a hereditary occupation.These two assumptions of the Britishers on criminality and caste system formed the basis of the Act. James Fitzjames Stephen, who is credited for introducing Indian Penal Code, 1860 and Indian Evidence Act, 1872, reflected on these assumptions when he introduced the Act. Stephen said:“When we speak of professional criminals, we mean a tribe whose ancestors were criminals from time immemorial, who are themselves destined by the usage of caste to commit crime, and whose descendants will be offenders”- James Fitzjames StephenJustice Narasimha marked that these words show a deep-rooted biasness of Britishers in criminalising these communities. He went on to say that the people who are labelled as being born criminals faced double discrimination as they were oppressed and ostracized by the social order due to the Indian caste system and at the same time by the legal order introduced by the colonial masters.He further highlighted that criminalisation was not sudden in the case of these communities as history indicates that many of them participated in freedom movements. Also, certain indigenous communities revolted against British administration prior to the mutiny of 1857. Even in the mutiny Britishers saw these communities as facilitators of goods and weapons. Consequently, they sought to maintain law and order through extreme measures such as this Act. The Act empowered the local government to designate any tribe or class of persons as criminal tribe if they were “addicted to the systematic commission of non-bailable offences”. The people of these communities were required to register themselves at local police stations and report there whereabout on daily basis and any travel or change of residence required official permission. “These communities faced not just discrimination but systematic control over their lives.” Amendment and the subsequent repeal Justice Narasimha drew attention on the fact that in 1897, the Act was amended, and the penalties were made more severe. Children between 4 and 13 years could be separated from their parents and placed in so-called reformatory settlements, which often resembled prisons. These settlement camps were sites of forced labour. Not only this, but the lives of hijras communities were also affected. Police would maintain a register of transgender persons who were suspected of kidnapping, castration and sexual activity that was penalised under Section 377 of the IPC. Further, police were entitled to do surveillance over these hijras persons who were prohibited from wearing female clothing and performing in public. Part II of the Act characterised the entire hijra community as criminal and deviant from the virtue of their own identity. This part however was repealed in 1911. “We must recognise the oppressive effect of this law on them and their persistent association with criminality under several acts including anti-beggary and anti-sex workers law which is prevalent even as of today”, Justice Narasimha stated. The Act was finally repealed in 1952, marking the critical step of acknowledging the injustice meted out to them. Justice Narasimha emphasised certain findings of the Ananthasayanam Ayyangar Committee in 1949 (it was based on the report of this committee ...

Denotified Tribes Face Disproportionate Criminalisation, Discrimination In Jobs & Education : Justice PS Narasimha

Gyanvi Khanna

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