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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