Disenfranchised by History The Tribes and their narratives
In the
nineteenth century the colonial government concluded that the pastoral nomads,
the
Itinerant
traders and other unsettled communities were different from the settled
agriculturists
fixed within domiciles. These wandering communities could not be situated
within
preconceived slots – administrative, economic, social. They were therefore
located as
aberrant
factors within a predictable and tractable human landscape, and had to be
‘controlled’
through the colonial legal and penal institutions for the maintenance of ‘law
and
order’.
This was the background to the passage to the "Criminal Tribes Act of 1871
or Act XXVII
(henceforth
CTA).
The
Criminal Tribes Act of 1871 was the start of a series of legislations on the
same theme.
Legal
interventions in the same vein came at regular intervals to fine‐tune,
elaborate, extend
jurisdiction
of the Act in order to knit a finer mesh which would act as an effective sieve
for
separating
the "criminal" from the "non‐criminal".
The
classificatory range of designating these communities "criminal" was
fairly broad‐based in
the CTA –
"A tribe, gang, or class". The alien government was taking no chances
with the tricky
problem of
nomenclature in case any erring community escaped the legal and penal dragnet.
This was
being pre‐emptively wise before the targeted communities (non‐literate and
unacquainted
with such sophisticated legal devices to check their "criminal
tendencies") could
muster
enough legal leverage to offer legal resistance to arbitrary penalties based on
their
precise
cognition of the fine distinctions between castes, tribes, classes, and the
nature of their
own
embeddedness within a certain classificatory marker. In 1874, there was a quick
review,
and another
improviso was added – "In this Act the words 'tribe', 'gang' and 'class’
shall be
deemed to
include any portion or members of a tribe, gang or class". The CTA now
included
Bengal in
its spread. Approximately around the same time both the Bombay and Madras
Presidencies
adopted the CTA for their own use in controlling "criminal tribes".
The Bombay
Presidency,
like the United Provinces where Thuggi had become the subject of a colonial
discourse
on Oriental criminality, had also been acquainted with the notion that the
"hereditary"
criminals belonging to "tribes" were a threat to law and order as
early as 1827.
There was a
Regulatory Order passed in order to control them.
The major
provisions of the CTA provided for the registration of all declared criminal
tribes. All
members of
the criminal tribes had to report to the police at regular intervals and had to
inform the
authorities if they were to absent themselves from their residences for a day
or
more; for
trips outside the settlement passes were required, and any member caught
without
a pass
outside the settlement was imprisoned (Section 25). All members of a declared
criminal
tribe had
to answer the roll call, which could take place at any unscheduled hour. If any
member
failed to respond, the onus was on the missing person to prove to the
officer‐incharge
of the
settlement that one had no evil intentions during the absence from residence.
Absconding
from any settlement or reformatory also meant imprisonment or fines or both.
(section
20, 2). Any breach of these rules invited punishment. Such
“defaulters"…were “liable
to
imprisonment for one year on a first conviction, for two years on a second
conviction, and
to three
years or a fine… or both on any subsequent conviction” (section 22(1), 22(2).
In 1897,
this Act was amended and the penalties were increased for second and third
convictions
to seven years and transportation for life respectively (CTA, 1897, sections
23.1
and 23.2).
The amendment also provided for the separation of children from parents who
were over
the age of four and under the age of eighteen, and were thus liable to be sent
to
reformatories
reserved solely for the children of the declared criminal tribes and castes
(CTA
1897,
sections 16, 17).
All the
Acts, from 1871 to 1924, gave the local government the right to locate any
“unsettled”
tribe in
the area of the government's own choosing. The local governments could even
deport
a settled
tribe from one area to another if the earlier area was not considered suitable
(CTA,
1871,
section 18).
The Act of
1911 introduced the rule that all members of the declared criminal tribes would
have to be
finger‐printed at the nearest police station, so that the tracking down of an
absconding
criminal, or of absconders from the settlements, could become simpler. Another
change was
introduced by the 1911 Act, in terms of which the declared criminal tribes were
not
compulsorily "settled" on lands allotted to them by the government.
They were merely
registered,
subjected to surveillance and fingerprinted, but the local government did not
take
responsibility
for them (CTA, 1911, Section 12).
Under these
legal and penal provisions, without the mainstream indigenous political opinion
engaging
with the issue, as here the folds of the colonial discourse on criminality and
developing
mainstream indigenous discourse on criminality overlapped, the latter heavily
influenced
by the former, the existence of whole communities under stringent penal
measures
went
unnoticed. The colonial government’s antipathy towards these communities was
shared
by the
settled indigenous communities, as they were part of the hierarchical social
network
and
political economy, while these wandering communities were not seen to belong to
any
known
framework of social reference. This suspicious attitude towards unknown ‘jatis’
who
periodically
shared their territorial spaces froze into rigid statements of dislike when,
over and
above their
indeterminate caste characteristics, the ‘Criminal Tribes’ Act’, 1871 added the
stigma of
criminality to these wandering communities. It was only after independence that
the
unconstitutional
nature of the designation ‐ "criminal tribes" ‐ was recognised and
the
communities
which had come under the purview of the Act were "denotified". But
for all
practical
purposes ‘criminal tribes’ they remained. Madhya Pradesh, Andhra Pradesh, Uttar
Pradesh,
Gujarat, Maharashtra, West Bengal, Orissa – all still have their ‘criminal
tribes’,
though
officially between 1950‐ 1952, they have been ‘denotified’.
In
Maharashtra, the Antrolikar Committee looked at the question of the
rehabilitation of the
ex‐criminal
tribes, who were denotified in Maharashtra with effect from 13 August 1949. The
CTA of 1924
ceased to be applicable to them; but the Committee felt that the Habitual
Offenders
Restriction Act should be made simpler and wider in scope "in order to
restrict all
habitual
offenders from Ex‐Criminal Tribes and also others as action on these few
notorious
characters
will enable other Ex‐Criminal Tribes to live peacefully in their
localities" (Budhan,
Oct‐Nov.
1998, pp. 13‐14). It is apparent that the Committee, over and above the fairly
stringent
provisions of the Indian Penal Code (Indian Penal Code, section 75, Chapter
III)1, had
felt the
need for the widening of the Habitual Offenders Act which would separate the
really
criminal
individuals from the denotified communities in general. That the parameters of
analysis
had not changed for the Committee members is also revealed in the careful
specifications
of what should be the state attitude to members of these communities who
persisted
in their nefarious activities even though the government had given them the
options
of clean
and healthy living.
As
soon as a person belonging to any community and particularly to the Ex‐
Criminal
tribes is produced before a Magistrate for the second offence under
the
IPC against property and person he should be handed over to experts in
psychoanalysis,
criminology and allied sciences to examine him. The result
of
such examination should be informed to the Magistrate who thereafter
should
proceed to pass judgement on such accused.
(Budhan,
Oct‐Nov, 1998, p.8)
There is no
attempt to even examine the vicious social conditions which had perpetuated a
certain way
of life for which partially, if not wholly, alien laws and mainstream
indigenous
prejudices
can be held responsible. This attitude of the Committee reinforces the critique
this
Report
posits: namely, inherent prejudices pertaining to mainstream moral and ethical
codes
are
embedded even within individuals anxious to redress fundamental inequity and
injustice
under which
whole communities have suffered. The Habitual Offenders Act, moreover,
because it
shifted emphasis from communities to the individual "hardened
criminal", would
possibly
feel free to eliminate all attempts to educate and reform children, as the
Criminal
Tribes Act
of 1871 had originally purported to do. As we have said, education and reform
were
no longer
seen as state concerns by 1911, as there were other calls on the limited spread
of
government
funds, especially pinch‐penny colonial governments. In this respect, the
Habitual
Offenders
Act locked retrogradely with the CTA, by omitting all semblances of
rehabilitation
and
focusing exclusively on legal repression.
1 This section provides
for enhanced punishment for certain offences under Chapter XII (offences
related
to forgery) and chapter XVII (offences related to property) of the
Indian Penal Code (henceforth IPC)
What also
is important in this context is that the Antrolikar Committee Report had
addressed
the issue
of rehabilitation of the denotified communities only in Maharashtra. Education
had
been given
top priority, but only primary education. The Report categorically stated that
:
"Special
elaborate suggestions about secondary and higher education have
not
been made as the question of the same will not arise for a number of
years.
For the time being we think facilities given to them as Backward
Classes
will be sufficient". (Ibid., p.7)
Further,
the denotified communities, all 28 of them enumerated in the Criminal Tribes
Act
Enquiry
Committee Report of 1939, have been classified according to their supposed
ethnic
origins ‐
whether they are indeed "nomadic tribes" or merely fall under the
rubric of
"backward
Classes", thus repeating the colonial ethnographic stereotype. Such
discursive
ascriptions
of ethnicity came packaged with graded privileges and opportunities, thereby
containing
the seeds of further injustice and perpetuating a potentially explosive
political
condition
for demands and counter demands of different "ethnic" groupings.
After more
than 50 years after the Antrolikar Committee outlined the necessary conditions
for
the
"denotified tribes" to be established socially and politically, their
situation in Maharashtra
has
actually slipped further towards unrelieved darkness. The recommendations of
the
Antrolikar
Committee were never carried out by the State government. Though there were a
few blind
spots regarding notions of "criminality" and "legal"
action, the recommendations
were
certainly a step in the right direction. Police oppression and the indifference
of the
mainstream
to their fate have together condemned more than 6 million people to a life of
terror,
fear, and deprivation, not just of food and shelter, but of all human dignity.
They have
been denied
citizenship on their own soil.
The
Constitution of India, the ultimate ethical and moral statement of a nation
that defined
itself
against the backdrop of perceived universal values adopted by the Constituent Assembly
on November
26, 1949, stated unequivocally that all its citizens meant every such person –
a) who was
born in the territory of India
b) either
of whose parents was born in the territory of India
c) who has
been ordinarily resident in the territory of India for not less than 5 years
immediately
preceding such commencement.
Further,
every person included
a) a
prisoner
b) a member
of the armed forces
Thus, a
citizen of India can expect Justice (social, economic and political), Liberty
(of thought,
expression,
belief, faith and worship), Equality (of status and opportunity), and
Fraternity,
assuring
the dignity of the individual, guaranteed by the Preamble to the Constitution.
Social
Justice, an
important component of the basic ideal of the Indian body polity, enables the
courts to
uphold legislation
a) to
remove economic inequalities
b) to
provide a decent standard of living to the working people
c) to
protect the interests of the weaker sections of the society.
As even the
most preliminary overview of the present situation of the denotified
communities
will
overwhelmingly demonstrate, here are a people who have been stripped of all the
constitutional
privileges that even a prisoner in India is guaranteed. More specifically, the
fundamental
rights of a citizen seem to have been created only to be contravened with
regard
to the
"denotified communities". Articles 19 and 21, if read with Art. 39 A,
guarantees freedom
of
expression and Right to Life that cover a wide range of rights: pre trial
release on a personal
bond (i.e
without surety) when the person concerned is indigent, speedy trials for
offenders
and
especially child offenders, no delay in bringing in to trial, all indigent
offenders who cannot
afford
legal representatives should be helped by the state, Right to livelihood,
prisoners should
not be
tortured, and Undertrial prisoners cannot be detained without charges or kept
in jail for
a period
exceeding the maximum prison term award. Art. 22 of the Constitution, giving
protection
against arrest and detention, specifies the conditions of arrest and detention
in
police
lock‐ups.
Directive
Principles, Part III of the Constitution, Art. 45, directs the state to provide
free and
compulsory
education for children, till they attain 14 years of age, while Art. 46, Part
III, directs
the state
to promote the educational and economic interests of Scheduled Castes,
Scheduled
Tribes and
other weaker sections. However such high falutin words cannot be upheld in any
court of
law in India. Such paper tigers can be turned into educational programmes (and
are
being
turned into such by many organisations) which will address this problem head
on. How
urgent this
problem is can be seen very ironically in a Report published during the 1930s,
of
the
settlements in Maharashtra, where under the controlled laboratory environment
of fear,
discipline
and some incentive of monetary returns, the programme of the compulsory
education
of children did function2:
“The
total population in the settlements in the Bombay Presidency is 12861.
This
shows an increase of 799. The list of the larger settlements with a
population
of over 1000 is as under:
Sholapur
4095
Indi
204
Bijapur
1229
Special
Settlement 143
Bagalkot
397
Gadag
1023
Hubli
2322
Dharwar
405
2 Starte, Esquire, ICS Criminal Tribes
Officer, Bombay Presidency. Dharwar> A report on the
Criminal
Tribes Settlement of the Bombay presidency.
Khanapur
548
Gokak
Falls 672
Dandeli
251
Baramati
521
Primary
education is compulsory for all the boys and girls between the ages
of
5 and 12 years, and for all the children who work as half timers, in mills
as
long as they are half timers. In the latter case, therefore their half time
attendance
in the day school is compulsory until they reach the age of
fifteen
years. The following table is illuminating from the point of view of
education:
Sholapur
4095 890
Indi
204 30
Bijapur
1229 230
Special
Settlement 143 32
Bagalkot
397 66
Gadag
1023 194
Hubli
2322 457
Dharwar
405 39
Khanapur
548 65
Gokak
Falls 672 182
Dandeli
251 29
Baramati
521 65
Nira
Projects 630 112
In
the sphere of vocational training, the various trades for which the training
was
imparted are as under: Carpentry (78), Masonry (92), Tailoring (7),
Agriculture
(22), Black Smithy (3) and Weaving (4).
The
credit societies established in the settlements have continued their
steady
expansion and are in a good financial position. They serve a very
useful
purpose in providing loans for marriages and other expenses for the
settlers.
Some of them also finance and control carpentry factories attached
to
the settlements, and undertake building construction also. The share
capital
is now 10,405 compared with the 8,846 for the last year, and total of
deposits
is 48,069 and the reserve funds are 9,475.”
Yet the
database collected by the research team shows in the post colonial India of the
21st
century,
without the human laboratories where an alien government preened on turning
hereditary
criminals into law abiding and humble subjects, that the conditions for these
communities
have actually slid back in time. Education is a luxury; state sponsored credit
societies
pipe dreams, an ordinary right to livelihood a nightmare of buying off the
police in
order to
survive. It is the memory of half‐full stomachs and a semblance of achievement
that
has kept
the 'justice' and sense of 'fairplay' of the colonial government still green in
the minds
of these
people. Possibly they imply that the colonial government was no better than it
should
be, but
that the Indian government has proved to be much worse.
Against these
high principles, if the present political, legal and social (including
educational)
conditions
of the denotified communities are balanced, it would seem that the balance
tilts
heavily
towards the harsh penal policies of the colonial government, with its semblance
of
liberal reform schemes.
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