Branding Person To Be Born A Criminal And Treating It As A Hereditary Phenomenon Was Born Out of Some Wrong Historical Notions: Justice Vishwanathan

31st August this year marks the 71st year of repeal of the Criminal Tribes Act, 1871 (CTA). A number of communities belonging to the Denotified Tribes celebrate this day as Vimukta Divas, the day of independence from the CTA, until its repeal in 1952.On the eve of this day the Criminal Justice & Police Accountability Project in association with Live Law organized a Vimukta Day lecture by Justice KV Viswanathan, Honourable Judge of the Supreme Court, on “Policing of ‘Habitual Offenders’: the enduring legacy of the Criminal Tribes Act in India”. The CTA criminalized several nomadic, semi-nomadic and other tribes including children from these communities, by naming them as hereditary criminals “addicted to the systematic commission of bailable offenses”. The colonial law provided extensive powers of surveillance of these communities, compulsory registration, 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 CTA remains, haunting members of Denotified Tribes to this day.Speaking to the operation of the colonial law, Justice Viswanathan remarked that “Under Section 3 (of the CTA), any tribe, gang or class of persons who was (believed to be) addicted to systemic commissioning of offenses, could be notified. All on subjective satisfaction, a recommendation will go from the local executive head that this tribe is to be notified.” He noted that the underlying rationale of the Act was based on “the colonial government’s obsession to order Indian society and the racist approach which was then prevalent. Branding a person to a born criminal and treating it as a hereditary phenomenon was born out of some wrong historical notions (...) which have been debunked as arising from a product of bad environment and poor economic condition.”In his lecture, Justice Viswanathan mentioned how the Act of 1871 came into being, the surveillance mechanism employed by the colonial state and the underlying rationale and finally how even after 71 years since the act was repealed, the Vimukta community is facing similar persecutions. Surveillance MechanismThe Judge highlighted the practical realities of the legislation and its impact at the time it was in effect, quoting an Assembly Member from Madras Province, V Raghavayya, “ (...) tribes had to report to the police stations, and also powers of surveillance, the executive machinery would in the middle of the night go for surveillance through roll calls and if they were not found that itself was treated as a violation of the act. Now this put a tremendous stress on the individual, no what did they do, they decided that the best way to be not subjected to a false roll call or false reporting was to just go to the police station or the police patil’s house an just sleep there in groups so that you can’t say that i wasn’t available when you came for surveillance. This is unimaginable.” He noted how the Supreme Court in Ankush Maruti Shinde v State of Maharashtra, had granted review petitions (against conviction) on the basis that members of nomadic communities were frequently roped in for investigations despite no involvement.Constitutional TouchstoneWhat if the Act was tested on the constitutional parameters? Justice Viswanathan juxtaposed the post-constitutional scenario with Victorian era morality, mentioning how the act sought to label entire communities as criminals and how it would be violative of Article 14 today. He remarked on the tenability of the surveillance allowed by the CTA, saying “fingerprinting, if today you were to test it (against) both the Puttaswamy judgments(...), with no judicial oversight and no control, it is a serious invasion of right to privacy also. So the Act was clearly unconstitutional, thus we are commemorating its repeal.”He also quoted Balkrishna Renke Commission report, “The livelihoods of many members of the DNTs depends on several occupations which are termed as traditional occupations, however, due to the impact of the industrialisation (...) the change in laws particularly the Forest Act, Wildlife Protection act and the Excise Act, has affected the denotified, nomadic and semi-nomadic communities by denying them access to resources to which they have traditional rights and deprived them of livelihoods infact made them criminal overnight without offering them any sustainable alternatives.”Post-RepealJustice Viswanathan reflected upon the post-repeal scenario and the CTA’s legacy. He referred to an MP, Shri R. Velayudhan’s speech about the repeal of the act and warned “let not the House go away with the impression that 4 million people have been liberated by the repeal, (it) may come in another form later on. This is the concern (...) that is being highlighted and it is better that we as a legal community, sociologists are accosted of this so it can be...

Branding Person To Be Born A Criminal And Treating It As A Hereditary Phenomenon Was Born Out of Some Wrong Historical Notions: Justice Vishwanathan

Sandesh Gangurde & Vikas Yadav

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