Tuesday, November 13, 2012

HISTORY OF LEGAL EVOLUTION AFTER CRIMINAL TRIBES ACT, 1871 ABOLITIONS AND REGIDITY IN IMPLEMENTATION OF WELFARE SCHEMES BY CENTRAL GOVENMENT TILL B.P.MANDAL RECOMENDATIONS

The history of legal evolution of the Criminal Tribes is adequately described in several scholarly works7. However, I would like to evoke a brief summary here for the purpose of a swift recall. The earliest legal provision on regulating the criminal tribes is found in Regulation No. XXVI of 1793. The famed fiction by Taylor8 titled ‘Confessions of a
Thug’ in early years of nineteenth century helped to create a popular imagery of criminal tribes. In the year 1830, the British administration created a separate ‘Thuggi and Dacoity Department’ and gave it powers of summary trials and execution to control the activities of the criminal tribes and ensure safer highways. Later when the Criminal laws were
consolidated to create the Indian Penal Code in 1860 and Criminal Procedure Code in 1898, several sections9 were devoted to this subject of regulating criminal tribes and nomadic communities. However, these provisions were not enough and finally the Criminal Tribes Act 1871 was enacted. The said Act in the initial years also proved to be
of no use for regulating nomadic tribes and eunuchs, hence, several amendments were made. The legal provisions were so scattered and varied in different parts of the British controlled territories, the British Government brought a central legislation in the year 1924 to consolidate these legal provisions for Criminal Tribes. United Province Government had appointed a committee to inquire into the functioning of the Criminal Tribes Act before Independence, and it submitted its report in 1947. This report echoed the same prejudice against the nomadic and criminal tribes. This committee felt that till the Gypsies settle down, they will continue the life of crime. It proposed that “efforts should be made under sanction of law, (suitable provision may be made in the Habitual offenders and Vagrants Act) to settle them and teach them a life of industry and honest calling as against idleness, prostitution and crime to which their conditions of
existence make them prone.” The Habitual Offenders and Vagrants Act that the above mentioned committee envisaged
proposed to contain provisions for dealing with Habitual Offenders of the following three
categories:
(i) “Those, who in spite of good environments and family traditions, become
habitual criminals,
(ii) Those who, because of bad environments, particularly family traditions and
associations, take to life of crime according to the custom of their group and
family and who are, therefore, not so much immoral as amoral.
(iii) Vagrants without any settled occupations, who lead a life of crime prostitution
and idleness. Separate provisions will naturally have to be made in the Act to
meet the requirements of each category of criminals; while there will be
common provisions too.”11
The last two categories suggested in this classification propagated the earlier definition of
‘Criminal Tribes’. The remedies sought for these three categories of Habitual offenders
were teaching honest livelihoods, their moral rehabilitation, and diagnosis of their
pathological and psychological abnormalities and their scientific treatment. These
correctional activities would take place within the strict discipline of a jail. In real terms,
the jail became the space where these people were trapped into the exploitation of the
industrial and market economy and imposed new culture and morality.
With regard to ‘Vagrant’ or Gypsies, the committee appointed in United Province took
the view that the policy of restricting them to settlements and industrial or agricultural
colonies should continue with changes in the administration of these settlements and
colonies. The committee further writes that “this we do, not merely with the aim of
protection of society from an outbreak of crime, but in the interest of the settlers’ reform
itself. Without having equipped themselves with moral anchorage, the settlers let loose,
are bound to behave like derelict ships and meet a similar doom. The Criminal Tribes Act 1924 remained in force till its repeal in 1952- five years after our independence. During this period, two private bills seeking to repeal the Criminal Tribes Act were also introduced in the Central Legislative Assembly in 1946 and 1949.
The first bill was not moved after the introductory stage and consequently it lapsed. The
second bill was not proceeded with after the introductory stage as the Honorable Minister
of Home Affairs gave an assurance that a committee would be appointed to enquire into
the working of the Act in the Provinces and to recommend whether the Act should be
modified or repealed.
Consequently, an Inquiry committee was established under the chairmanship of
Ananthsayanam Ayyangar in 1949 by resolution No. 22/1/49-Police-I, dated 28th Sept
1949 of the Ministry of Home Affairs, the Government of India. Ayyangar’s Committee
recommended repealing the Criminal Tribes Act 1924 and similar provisions which
declared an individual as a criminal on the basis of his caste or birth in a particular gang
or class. Thus, the Ayyangar committee’s recommendations removed the legal
inconsistencies that Criminal Tribes Act had with the Constitution of India. On the
contrary, it failed to redress the popular prejudice against the nomads and the denotified
tribes. These age-old prejudices came flooding back in the form of ‘Restriction of
Habitual Offenders Act’. The State policy on Criminal Tribes and Nomadic Tribes is found to have two major aspects, i.e., legislative measures to control and regulate them, and the other is to subject
them to ‘welfare’ measures. The welfare measures planned is found to be always
concomitant to the reasons for which they are brought under control and regulatory
regimes. Thus, Ayyangar’s inquiry committee recommended several steps towards
amelioration of the Criminal Tribes after the repeal of the Act. The social and economic
deprivation was believed to be the reasons for their dereliction and there was fear that
without welfare activities these malevolent syndromes may regenerate. It wrote: “the
members of Criminal Tribes have been labouring under manifold disabilities over a long
period. As a class, they are socially backward and economically depressed. It is,
therefore, essential to help them to improve their conditions and also to see that those
who had criminal propensities in the past but are reformed now, do not revert to crime on
the repeal of the Criminal Tribes Act.13
The Government of India accepted some of the recommendations by Ayyangar’s
committee. The Government of India repealed the Criminal Tribes Act 1924 with effect
from 31st August 1952 by the Criminal Tribes Laws (Repeal) Act, 1952 (Act No XXIV of
1952). But to keep effective control over the hardened criminals, the Habitual Offenders
Act was placed in the statute books. The welfare angle of the State policy was ensured by
putting these communities as Schedule Tribes, Schedule Castes or Backward Classes.
Though, these communities were fitted into the schemes of special protection and
attention under the Constitution of India, but they somehow missed the attention in the
national debate to eradicate the worst forms of social prejudices that had resulted into
centuries of exploitation, harassment and subjugation. In order to gain an understanding as to how ‘Criminal Tribes’ and ‘Nomads’ missed the opportunity of the formation of the modern Indian State and society, we need to take a quick glance at historical progression of the welfare and empowerment of the
marginalised communities in India. The history of special welfare programmes for the
deprived and marginalized people in the history of India can be traced back to 1885,
when the Madras government formulated the infamous ‘Grant-in-Aid Code’ to regulate
financial aid to educational institutions, providing special facilities for students of
depressed classes. The second major step in this direction was taken by the Maharaja of
Mysore in 1918. He appointed Sir L. C. Miller, the then Chief Justice of Mysore, to
recommend steps for adequate representations for non-Brahmins in the services of the
State. And on recommendation of the Miller committee Government of Mysore issued
orders in 1921 extending special facilities to backward communities with regard to
education and recruitment in state services.
In the same year, 1921, the Madras State Legislative Council passed a resolution in
favour of increasing the representation of non-Brahmins in the government services. In
1927, the said scheme was expanded by dividing all the communities in the State into
five broad categories and earmarking separate quota for each category. The next example
comes in 1928 from the Government of Bombay, which instituted Mr O. H. B. Starte to
identify backward classes and recommend special provisions for their advancement. This
committee classified the backward classes into three categories, i.e., 1. ‘Depressed
classes’, 2. ‘Aboriginal and hill tribes’, 3. ‘Other backward classes’; and recommended
special facilities regarding education and recruitment in Government services. The first
systematic attempt for the political empowerment of ‘Depressed classes’ was made with
the introduction ofMontague-Chelmsford Reforms of 1919, when separate representation
on a number of public bodies was given to members of these classes.
The Constitution therefore concentrated on the social prejudice towards the ‘tribes’ and
‘untouchables’ and treated the rest of the population as ‘poor’ described as ‘socially and
economically backward classes’ in the Constitution. As a consequence, the social
prejudices against the Denotified Tribes and Nomadic communities, failed to enter the
arena of constitutional deliberations. The Indian State remained hegemonic and the Civil
Society lingered its connivance and exonerated itself from any democratic obligation by
shifting the blame on to these victims. The ‘Schedule Tribes’ and ‘Schedule Castes’
though got special protection under the Constitution of India, the ‘other backward
classes’ remained uncovered. Those ‘Criminal Tribes’ and the ‘Nomads’ who did not fit
into the definition of the schedule caste or schedule tribe, were left in lurch continuing
their fight against the age-old prejudices. After independence, the first backward class commission was appointed on the 29th January 1953 under the chairmanship of Kakasaheb Kalelkar. This commission suggested that the erstwhile ‘Criminal Tribes’ should not be called ‘Tribes’ nor should the names
‘Criminal’ or ‘Ex-Criminal’ should be attached to them. They could be simply called
‘Denotified Communities’14. The Kalelkar Committee further recommended that “these
groups may be distributed in small groups in towns and villages where they would come
14 The Report of the Backward Class Commission, 1955, Government of India Press, Delhi, para 48.
in contact with other people, and get an opportunity for turning a new leaf. This would
help in their eventual assimilation in society”15. The Kalelkar commission tried to end the
isolation and promoted their assimilation into the mainstream. The terms of assimilation
was not stated in clear language. But, looking at the overall idiom of the report, it would
be safe to presume that the assimilation was excessively compromising and was at the
cost of their cultural identity. Thus the policy guideline proposed by Kalelkar
commission undermined the democratic rights of denotified tribes and totally ignored
their entitlement to protective discrimination as guaranteed to schedule castes and tribes.
Let us now examine what Kalelkar commission contemplated for the nomads. It takes
special note of the ‘wandering communities’ in later part of the report. “There are a large
number of small communities who eke out a precarious existence in the countryside.
They have no fixed place of residence and they move from place to place in search of
food or employment. They often rear pigs and poultry, hunt wild animals to satisfy their
hunger and collect forest produce to make a living. They live in thatched sheds or gunny
tents, and move in groups. They believe in witchcraft. Because of the insecurity of their
life, some of these communities are given to crime. It should be special responsibility of
Government to give them a settled life.16” The report also discusses the ‘traditional
beggars’ or ‘religious mendicants’ who were mostly covered under Prevention of
Begging Act- ???, another appalling enactment by British Government17. The Kalelkar
commission considered the problem of beggary in India is a social and religious malice
and legislation is not an effective tool to solve this. He pointed out that glorification of
the alms giving is found in almost all religious denominations living in India. Beggary in
Indian context is regarded as a form of insurance against crime. The popular belief is that
unless you give a decent living to able-bodied persons, you must be prepared to give
alms; otherwise people will take to crime.
The recommendations of the first backward classes commission was not accepted by the
government due to difference of opinion about whether caste should be the basis for
defining backwardness. After a detailed examination of the commission’s report, the
Government laid its copy together with a Memorandum of action taken before each house
of Parliament on September 3rd 1956 in compliance with Article 340(3) of the
Constitution. The government did not take any concrete action on the recommendations
of the Kalelkar commission. The government stated in this memorandum that “the
Planning Commission had already formulated the development programmes for the
removal of backwardness and the main point to be stressed was whether the special needs
of the backward classes could be intensively and effectively served by appropriate shifts
of emphasis or by rearrangement of priorities within the framework of the existing
programmes or whether additional programmes needed to be drawn up.
After presenting the Memorandum to the Parliament, the Government made efforts “to
discover some criteria other than caste which could be of practical application in
determining the backward classes. The Deputy Registrar General was asked to conduct a
pilot survey to see if backwardness could be linked to occupational communities instead
of caste. Such a survey was undertaken but it failed to throw up the desired criteria. The
matter was also discussed at a conference of State representatives on 7th April 1959 and
subsequently reviewed at a meeting of State officers convened by the Ministry of Home
Affairs, but no consensus emerged as a result of these efforts.
The central government ultimately took a decision that no all India lists of backward
classes should be drawn up, nor any reservation made in the Central Government service
for any group of backward classes other than Scheduled Castes and Scheduled Tribes.
Consequently, on August 14th 1961, the Ministry of Home Affairs addressed all the State
Governments stating, “While the State Governments have the discretion to choose their
own criteria for defining backwardness, in the view of the Government of India it would
be better to apply economic tests than to go by caste”18. Regarding the preparation of lists
of backward classes it was observed, “Even if the Central Government were to specify
under Article 338 (3) certain groups of people as belonging to ‘other backward classes’, it
will still be open to every state government to draw up its own lists for the purpose of
Articles 15 and 16. As, therefore, the State Governments may adhere to their own lists,
any all-India list drawn up by the Central Government would have no practical utility.19
After receiving this directive from the Ministry of Home Affairs, some of the state
governments set up committees or commissions to determine the criteria to be followed
to identify the backward classes and prepare the list of backward classes for their
respective states20. Other states/Union Territories (Assam, Delhi, Haryana, Himachal
Pradesh, Meghalaya, Orissa, Pondichery, and Rajasthan) notified their OBC list without
appointing any committee or commission. These states mostly relied on the lists of OBCs
maintained by them for the grant of post-matric scholarships under the Education
Ministry’s scheme formulated in 1944, and another list prepared by the Commissioner for
Scheduled Castes and Scheduled Tribes at the time of drafting the First Five Year Plan.
In the meanwhile, the list of Scheduled Tribes and Scheduled Castes were finalized by
the Presidential order in 195021. The list of the Scheduled Castes drawn in 1950 was a
revised version of the list of SCs under the Government of India Order (SC), 1936, made
under the Government of India Act 1935. This was in turn the continuation of the list of
‘Depressed Classes’ prepared by the Census Commissioner in 1931. Similarly, an attempt
to list ‘Primitive Tribes’ was also made in Census of 1931, and this list was later adopted
into the Government of India Act 1935 as ‘Backward Tribes’. This list of ‘backward
tribe’ was adopted with some minor alterations in 1950 as the list of ‘Scheduled Tribes’.
Hence, the identification and classification of the backward classes by the Government of
India embark on the norms adopted in Census of 1931. In the context of enumeration of
‘caste’ and ‘tribe’ the following paragraph is worth quoting here:
“The column eight in the general schedule provided for an entry of ‘caste tribe or
race’. The term ‘caste’ needs no definition in India; ‘tribe’ was provided to cover
the many communities still organized on that basis in whose case the tribe has
not become a caste; it was likewise determinate enough, and no attempt was
made to define the term ‘race’, which is generally used so loosely as almost to
defy definition.22
Instead of providing a rigid definition of ‘depressed classes’, the J.H. Hutton as
commissioner of Census operations of 1931 prescribed some possible tests to be
considered by the superintendents of census operations. These tests as prescribed by
Hutton are as follows:
“1. Whether the caste or class in question can be served by clean Brahmans or
not.
2. Whether the caste or class in question can be served by the barbers, watercarriers,
tailors etc., who serve the caste Hindus.
3. Whether the caste in question pollutes a high caste Hindu by contract or by
proximity.
4. Whether the caste or class in question is one from whose hands a caste Hindu
can take water.
5. Whether the caste or class in question is debarred from using public
convenience, such as roads, ferries, wells or schools.
6. Whether the caste or class in question is debarred from the use of Hindu
temples.
7. Whether the ordinary social intercourse a well educated member of the caste or
class in question will be treated as an equal by high caste men of the same
educational qualifications.
8. Whether the caste or class in question is merely depressed on account of its
own ignorance, illiteracy or poverty and but for that would be subject to no social
disability.
9. Whether it is depressed on account of the occupation followed and whether but
for that occupation it would be subject to no social disability.23
J. H. Hutton, who was the Commissioner of Census in 1931 further wrote on criteria
followed for identification of the depressed castes:
“No specific definition of depressed castes was framed and no more precise
instructions were issued to the superintendents of census operations, because it
was realized that conditions varied so much from province to province, that it
would be unwise to tie down the superintendents of census operations with too
meticulous instructions. The general method of proceeding prescribed was that of
local inquiry into what castes were held to be depressed and why and he framing
of a list accordingly. It was decided that Muslims and Christians should be
excluded from the term ‘Depressed Class’ and that, generally speaking, hill and
forest tribes, who had not become Hindu but whose religion was returned as
Tribal, should also be excluded and in the numbers of the exterior castes given
below these principles have been followed.24
Thus, the variation of the social reality in different parts of Indian territory prevented the
identification of ‘depressed’ and ‘exterior castes’ on the basis of a set of rigidly defined
criteria. The general guidance issued by the commissioner of the Census 1931 only
covered the social oppression arising out of the practice of untouchability. It did not
cover other forms of social oppression such as ‘stigma of criminality’ and social
exclusion and atrocities practiced against ‘nomads’. The Census of 1931 also excluded
the caste groups following Christianity, Islam and other non-Hindu religion from the list.
This list of ‘exterior castes’ or ‘excluded castes’ in Census of 1931 were adopted in the
Government of India Act 1935. Similar trajectory was followed in the preparation of the
list of Scheduled Tribes. The list of ‘Primitive Tribes’ which was prepared at the time of
Census of 1931 formed the list of ‘Backward Tribes’ in Government of India Act 1935.
The list was further extended in 1950 and 1956 under Constitution of India as Schedule
Tribes. Primitiveness and backwardness were the two major criteria followed as tests
applied in preparing the list. As a result of this, the State policy of ‘protective
discrimination’ and ‘affirmative action’ remained narrow and selective. After
Independence, many of the communities who remained outside the purview of the
‘reservation policy’ expressed their dissatisfaction. The government, as a response to this
considered their proposal to revise the list of ‘Schedule Caste’ and ‘Schedule Tribe’.
However, the policy canvas froze to the scope of the Indian Constitution.
In 1965, an advisory committee was constituted for the revision of the Scheduled Caste
and Scheduled Tribes list by Government of India under the chairmanship of Mr Lokur.
In revising the list of Scheduled Tribes the Lokur Committee looked for indications of
primitive traits, distinctive culture, geographical isolation, shyness of contact with the
community at large and backwardness. The committee also considered that the tribes
whose members have by and large mixed up with the general population are not eligible
to be in the list of Scheduled Tribes. The Lokur committee took a stricter view in the
matter of fresh inclusions in the list of Scheduled Tribes and stuck to the criteria fixed in
the Government of India Act 1935.
Although the Lokur Committee in general followed a strict guideline for entertaining the
requests of revision of the Schedule Caste and Scheduled Tribes list, its remarks on
Denotified and Nomadic Tribes look quite interesting. In the matter of defining them as
Denotified and Nomadic Tribes, the Lokur committee observed that it would be more
scientific to refer to them as communities. It further writes that “members of the
denotified and nomadic tribes posses a complex combination of tribal characteristics,
traditional untouchability, nomadic traits, and an anti-social heritage25”. The Lokur
committee furthermore observed that their ‘discussion with the state governments reveal
that the type of developmental schemes usually designed for Scheduled castes and
Scheduled tribes have not benefited the denotified and nomadic tribes to any significant
extent because of their relatively small numbers, and their tendency to be constantly on
move. It is also clear that while these communities may possess some of the
characteristics usually associated with the Scheduled Cates and Scheduled Tribes, the
dominant factors which govern their life are their anti-social heritage and tendency to
move from place to place in small groups.
The Lokur Committee was so convinced about the distinct characteristics of the
Denotified Tribes and Nomads that it felt “it would be in the best interest of these
communities if they are taken out from the lists of Scheduled Castes and Scheduled
Tribes and treated exclusively as distinct group, with development schemes specially
designed to suit their dominant characteristics”26. However, the Lokur committee decided
to maintain the status quo due to the limitation of time and absence of adequate
information they could not decide the cases of individual communities belonging to
Denotified and Nomadic Tribes.
The distinctions such as ‘anti-social heritage’ and ‘tendency to move from place to place’
pointed out by the Lokur committee again reiterate the social prejudice against these
groups. As the Lokur committee had observed, some of these communities who shared
characteristics akin to the SCs and STs were classified in the official lists prepared in
different states and Union Territories. Those who did not fit into this Constitutional
format were covered under ‘educationally and socially backward’ communities.
The Kalelkar commission which delved into the issue of classification and identification
of ‘educationally and socially backward’ communities immediately after independence
gives extensive description of communities to be considered for this purpose. The first
two categories described here are: “1. Those who, owing to long neglect, have been
driven as a community to crime. This group is now resolved into those belonging to SC,
those belonging to STs- the remained will be considered as belonging to ‘Other
Backward Classes’. 2. Those nomads who do not enjoy any social respect and who have
no appreciation of a fixed habitation and are given to mimicry, begging, jugglery,
dancing etc.27” Later, in 1978, Shri Morarjibhai Desai, the then Prime Minister of India,
declared the constitution of another Backward Classes Commission under the
chairmanship of B. P. Mandal. This commission submitted its report to the president Shri
Neelam Sanjiva Reddy on 31st December 1980.

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