Stigma
Of Criminality
By Human Rights
Features
09 July, 2004
The
discrimination, abuse, and social and economic marginalisation faced
by millions of Indians belonging to 'denotified and nomadic tribes'
(DNT-NTs) have their roots in 19th century British colonialism when
such tribes were 'notified' by the British as being inherently "criminal".
However, thishistorical
pattern of marginalisation and abuse continues today, and is a blight
on India's human rights record and its declared commitment to the equality
and well-being of all its citizens under both domestic and international
law.
The British had
sought to control and contain these landless and nomadic "criminal
tribes" through a series of Criminal Tribes Acts propagated throughout
the different geographical and administrative units of India. The first
Act, passed in 1871, applied only to areas in north India; however,
in subsequent Acts, and particularly in 1911, the measures were extended
to all of British controlled India, and altered to include ever-more
draconian features.
These Acts gave
sweeping powers to the local governments to recommend that certain "tribes,
gangs, or classes" be declared as being "addicted to the systematic
commission of non-bailable offences". Once a tribe became notified
as belonging to a criminal class, all members of the group were required
to register at a specific time and place with the local magistrate.
Anyone failing to register would be charged with a crime under the Indian
Penal Code. Further, the Act gave broad powers to the local government
to forcibly move these 'notified' tribes to 'permanent reformatory settlements'.
Labelling such areas as settlements glosses over their true nature as
virtual prisons, as anyone belonging to one of the 'notified' tribes
could be imprisoned for "escaping" from their reformatory
settlement, or for being anywhere "beyond the limits so prescribed
for his residence." The settlements that were created served as
de facto labour camps, with contractors requiring cheap manual labour
farming out members of the settlement camps. Thus the members of these
tribes were caught in the colonial nexus of land reform, the need for
cheap labour, and the rhetoric of social reform.
Although the Criminal
Tribes Acts were repealed across India in 1952, these communities continue
to carry with them the stigma of criminality. DNT-NT communities must
have looked forward to an independent India that afforded them protection
under the fundamental rights section of the Indian Constitution. However,
the promises of Articles 14 (equality before the law), Article 15 (prohibition
of discrimination), and Article 21 (protection of life and personal
liberty) have yet to extend their full reach over DNT-NTs. Further,
following the repeal of the Criminal Tribes Acts by newly independent
India, a series of 'Habitual Offenders' Acts was passed by State governments
across India which mirrored the Criminal Tribes Acts in significant
ways. Although not listing certain groups as being inherently criminal,
the Habitual Offenders Acts use many of the same registration and notification
procedures as outlined in the Criminal Tribes Acts, and have been used
routinely against members of DNT-NTs.
The use of the Habitual
Offenders Acts against DNT-NTs goes against the protections provided
both in the Code of Criminal Procedure as well as the Indian Constitution.
The Code of Criminal Procedure includes a number of safeguards that
are intended to protect the rights of the accused under investigation
for a crime. In section 41 of the Code, an arrest may be made when there
is reasonable suspicion. However, the concept of 'reasonable' can in
no credible way be argued to cover mere membership of a particular community.
Suspicion must reside in the certainty that is attached to the actions
of an individual, not based on tribal name or affiliation. Further,
the treatment of DNT-NTs at the hands of the police and government authorities
is in contravention of standard procedures of justice that dictate that
an accused must be presumed innocent before conviction, and that guilt
must be established beyond a reasonable doubt.
The contrast of
such provisions of the Code with an excerpt from the Habitual Offenders
Act (Andhra Pradesh) is striking.
(1) If in the opinion
of the government it is necessary or expedient in the interests of the
general public so to do, the Government may by order direct that any
registered offender shall be restricted in his movements to such areas
and for such period not exceeding three years as may be specified in
the order.
(2) Before making
such order, the Government shall take into consideration the following
matters, namely. (b) whether the registered offender follows any lawful
occupation and whether such occupation is conductive [sic] to honest
and settled way of life and is not merely a pretence for the purpose
of facilitating commission of offences. (emphasis added)
This provision grants
broad administrative power based on mere interpretation. When the basis
of such provisions relies on the interpretation of administrative bodies
that have a history of persecuting certain groups, and when the context
of such interpretation takes place within a society at large, where
widespread discriminatory attitudes toward the DNT-NT communities exist,
occupations and practices of DNT-NTs will continue to be seen as mere
covers for crime. Under this provision, true and lawful employment can
be construed as being a ruse for criminality, especially when DNT-NT
communities are the immediate suspects in so many instances of crime.
This vicious cycle is further compounded when media reports of certain
cases of crime accuse DNT-NTs as "criminal tribes" by name,
and even describe their various occupations, which they supposedly use
for cover. All of this leads to the patterns of continued abuse and
discrimination of DNT-NTs.
Socio-economically,
DNT-NTs enjoy living standards far below that of other Indians, and
because of the discrimination and stigma of criminality they face, they
are at a severe disadvantage when it comes to finding employment. While
various welfare schemes have been established in certain states, their
limited purview, weak mandate, and inconsistent implementation render
them ineffective in ameliorating the plight of DNT-NTs.
Although the problems
of DNT-NTs have been recognised by the National Human Rights Commission
(NHRC) through the formation of a sub-group to study the issue, as well
as specific recommendations made to State governments, there has yet
to be any real and meaningful action on the part of responsible parties.
National legislation exists to deal with atrocities committed against
Scheduled Castes (SCs) and Scheduled Tribes (STs), but this has yet
to be used in the vast majority of abuse cases perpetrated against these
groups. Further, different States have categorised DNT-NTs in different
ways, with certain groups falling under the designation of SCs, STs,
or Other Backward Classes (OBCs), or having no special designation at
all. Therefore, there is a need for a national response to the issues
facing DNT-NTs, with the creation of a separate category of DNT-NT so
that the particular and unique issues of discrimination and abuse that
these communities face (including the stigma of criminality they continue
to carry), can be handled in a substantive manner.
Provisions of international
law provide further protection for India's DNT-NTs. However, while India
has signed and ratified certain conventions that would guarantee the
rights of these communities, the reality of their non-implementation
nullifies the protections offered by them. This disparity between the
rhetoric of rights so commonly proclaimed by the Indian Government and
the lack of access to such rights by communities is both deceptive and
disturbing. The International Covenant on Civil and Political Rights
(ICCPR), the International Covenant on Economic, Social, and Cultural
Rights (ICESCR), and the International Convention on the Elimination
of All Forms of Racial Discrimination (ICERD), all of which India is
a State party to, include numerous protections which as of yet have
not reached India's millions of DNT-NTs.
If the standard
of any of these individual provisions is not enough to indicate a clear
breach of law, then the totality with which India has ignored, refused
to implement, or proved incapable of enforcing all of the above provisions
together, in both domestic and international law, is truly staggering
and merits immediate attention. The rule of law is meant not only in
the disciplinary sense of punishment, but much more broadly in the sense
of creating an environment conducive to the full realisation of the
whole range of rights to all citizens. This full realisation of rights
by all citizens is an ideal that should be striven for at all times.
While the burden
of action and redress lies with the Central and state authorities, the
systemic nature of the problem also requires civil society to engage
in an honest and open dialogue, to examine the ways in which discrimination
continues to exist, and to ensure that members of DNT-NTs are able to
live freely, without the burden of discrimination and abuse, and with
adequate institutional safeguards to protect their life and liberty.
HUMAN RIGHTS FEATURES
(Voice of the Asia-Pacific Human Rights Network)
(A joint initiative of SAHRDC and HRDC)
B-6/6 Safdarjung Enclave Extension, New Delhi 110 029, India.
Tel: +91-11-2619 2717, 2619 2706, 2619 1120; Fax: 2619 1120
E-mail: [email protected]
Home Page: http://www.hrdc.net/sahrdc/