Back to Home
AnalysisCriminal JusticeCriminal Justice SystemCriminal LawDue ProcessDemocracy and Rule of LawHistoryHistory and lawGovernance and PolicyLaw and CitizenshipAffirmative ActionSocial Justice
The Leaflet
Published on: 26 January 2019, 04:06 am
[dropcap]A[/dropcap]LL is not well in this glorious republic we call India. It might not be apparent but it is insidiously and slowly eating up the very foundations of our great nation. People, ordinarily carry with pride, prefixes as ex-MLA, ex-MP, ex-IAS, ex-Judge, etc. I, on the other hand, no matter what I achieve in life, would be known as an "ex-criminal" by birth.
What's worse is that not just I, but unlike other titles, I shall pass on this inglorious legacy to my generations to come just as I inherited this from my forefathers. I am not alone in this ordeal as people born across the 198 other tribes in this beautiful country of India become my brethren. I, belonging to one such tribe, feel sorry for those who are in fact celebrating the recent 10% reservation for the 'economically weaker sections', which is simply the Government playing fraud not just on my kind of people, but on the Constitution itself, the birth of which we commemorate on this day, January 26, of each year.
Join me as I take a deep and long look at the recently passed 124th Amendment to the Constitution of India and its impact on the Criminal Tribes. It is likely that many readers, and those who write our fate in the legislatures and courtrooms of the country, may not even be aware of the existence of such a group. Be that as it may, the truth is that according to official records, there are more than a 100 million citizens who belong to this category at present.
History is witness to the fact that the power to legislate remains in the hands of the powerful, be it in an oligarchy, a monarchy or any other form of government. The only exception to this rule is a democracy, making it the more popular form of governance accepted by countries across the world.
Around the time that the Indian masses were agitating against the Britishers, multiple, hitherto nomadic and aboriginal tribes of India rose up and joined in the struggle and revolted in the year 1857. Otherwise neutral in politics, and mainly devoted to making their own livelihood, when threatened with the occupation by the British, they placed their resources at the disposal of Indian princes and kings. They devoted themselves completely to the struggle against tyranny. Women, men, children, everyone gave their everything for this struggle. From forging weapons to collecting intelligence, from being currier, suppliers, navigators, to offering finance and even entertaining, they did everything they possibly could to be of service in the struggle for freedom.
However, the skewed balance sheet of the 1857 revolt reflects the profits that cowardly Indian rulers made, and the irreparable losses suffered by the tribes. While the Indian princely class were clever enough to retain their hollow glory royal pensions and Privy purses, they conveniently deserted their loyal foot soldiers who bore the brunt of the revolt to the mercy of the perpetrators, namely the British.
The British knowing well the crucial role played by the tribes in the Revolt, deviously introduced the Criminal Tribes Act 1871 amending it from time to time and conveniently scheduling 198 tribes across the subcontinent, labeling every single child born to these tribes as "criminal" by birth.
The paradox was that law provided for their "reformation" by making them work under an oppressive policy of no wages to be paid for work assigned by the government. Most of our forefathers have laid rail tracks, worked as masons, carpenters, butchers, entertainers for hours and days together oftentimes without even a single meal. Some tribes were placed in what was essentially an open prison called settlement camps, where they would hard labour, of course free of cost, so that they get more and more "reformed" so to speak with every passing day while other tribes were under lawful command to keep moving from one place to another and not to stay at a place for more than three days.
Law commanded that their arrival at a village be informed voluntarily to the village head, who would then announce it by drum beat to the whole village. Every person from the tribe, was to keep an inventory of every article he possessed and was to get it certified, by the village head before every single migration. If any person was found in possession of any extra article, he was to be presumed guilty unless proven innocent. Members of these tribes were under compulsion to appear at the police station even at odd hours per the wishes and caprices of the station head, and were required to maintain a diary of attendance.
Obedience to an outright inhuman law such as this made the tribes extremely vulnerable and easy targets of exploitation as they were left with no other option but to surrender to it. And, over the years, this submission without question became a stronghold in the garb of tradition. If this exploitation was not enough, some of the tribes were required to reserve their women as sex workers, though not "legally", while men were forced to be pimps.
There are certain tribes which even to this day do not wear new clothes or soil it before wearing. Some tribes just to comply with "tradition" go as far as to put a "tika" of dirt on their new clothes. Though later generations have done away with this kind of self-denial due to age old customs being embedded in their psyche, yet the wearing of new clothes could still be a matter of contempt and persecution.
Enslaved for years, these communities did not find any solace for almost a century. It was Subhash Chandra Bose who was perhaps the first leader to raise concerns against this oppressive law. He wrote passionately to Gandhi seeking to know his agenda for these original freedom fighters. Later some leaders from these tribes joined hands with Bose, quitting their association with Gandhi and Muthuramalinga Thevar was one of them.
On August 15, 1947, while the entire nation was basking in the glory of India's Independence, there was no celebration in any of the settlement camps. Their internment continued, as did the slavery, the compulsory move from time to time, attendance at the police station and forced labour. It wasn't until August 31, 1952[i] that they tasted freedom for the first time with the repealment of the oppressive law, which was then "replaced" with the Habitual Offenders Act by respective States.
It is known that in the interregnum, the Simon Commission was persuaded by Dr Ambedkar to give these communities, reservation under the Schedule of Tribes; however, it is unclear as to why the Commission did not accept Dr Ambedkar's arguments.
The repeal of the Act, however did more damage than good. People who were staying in the settlements were forced to leave their habitats without any rehabilitation or identity documentation, whereas the Criminal Tribes Act continued to be on the syllabus of police training schools. The process of maintaining inventories, regular attendance at police stations, the harassment and the persecution, etc., continued unabated as though nothing had changed. The tribes were never integrated into mainstream community living and were often subjected to the mistrust and contempt of people, the presumption of them being hardened criminal preceded any interaction and the fear and suspicion of theft etc., resulted in mob lynchings and is something that continues even today [see the Criminal Tribes Law (Repeal) Act 1952, Act 24 of 1952, dated March 6, 1952.]
A cursory glance at the various government appointed committees and commissions would reveal the pathetic condition of these tribes Ironically report after report, and book after book, have only rendered lip service, without making a positive change in their lives. A study conducted by Sangharsh Wahini, a collective of activists working for nomadic and denotified tribes, found that the drop out ratio of children from denotified tribes was over 90% in the primary education stage[ii]. Further, a sample survey conducted by NTDNT[iii] another activist organisation, revealed that every family from Paradhi Community were accused in an average of at least five criminal cases at any given point of time[iv].
Very importantly, the Commission for Review of Working of the Constitution noted the alarming condition of these tribes and sought an urgent intervention. However as expected, nothing happened and the setting up of commissions has become nothing but a farce as they simply make recommendations that never see the light of day or spend time examining previous recommendations.
An interesting point is that the government recognised the literary contribution and generously rewarded those who wrote about the life of these tribes. However, there have been very few exceptions like Mahashweta Devi who not only wrote, but also fought the system demanding attention and remedial justice for these communities.
While many commissions have recommended their inclusion in the current list of Scheduled Tribes, a more recent report identified them as having unique challenges and therefore suggested the need to create a separate Schedule and a concurrent plan of action addressing their unique problems. However, this plan is yet to see the light of day.
It is noteworthy that the Commission had given strong recommendations for giving the tribes a 10% reservation in employment, education, political representation and budgetary allocation, however, nothing happened and the refusal was justified by contentions such as the embargo on giving reservation exceeding 50%, the necessity to amend the Constitution etc.
However, what is extremely disparaging is that generation after generation of these Criminal Tribes peacefully awaits redemption in the form of 10% reservation, however clearly the Union of India thought it more expedient to give 10% to the Upper Castes, conveniently excluding SCs, STs, and rubbing salt on the blistering wounds of tribes such as the Ex-Criminal Tribes, Nomadic and Semi-Nomadic Tribes. Interesting to note that giving reservation to the so-called economically backward classes, did not require circumventing issues of embargo or the need for a report.
All those who debated over this amendment have quoted repeatedly, that reservation was no poverty alleviation program. Debates in both the Lok Sabha and the Rajya Sabha went through many narratives of reservation, but none bothered discussing or considering the decades' long pending recommendation for a separate reservation to these "ex criminals" and none including the Independents or even the Communists thought it worth to dedicate a single line for them. Indeed, blessed is our democracy with such representatives! Clearly, the Criminal Tribes are voiceless.
The pertinent questions remain — Isn't reservation meant to be an affirmative action? A positive discrimination meant to favor those who were previously discriminated? Isn't it meant to offer representation to those who are under-represented or not represented at all? Isn't it meant to keep a certain amount of seats reserved in educational facilities, so that they partake of what was kept away from them for centuries by the caste system? Isn't it meant to give a voice in policy making to oppressed classes so that they can have their say to protect or secure their interest? Isn't it supposed to ensure employment to those who have been rejected by the caste mindset? So where do these so called economically backward classes excluding SC/STs fit in in the scheme of things?
In our country, where diversity exists in every unity, reservation has always been projected as ex gratia rather than a right. It is in fact a right that is being secured after centuries of suffering, of being perpetually enslaved, of being at the mercy of the higher castes, of submitting to all sorts of exploitation. It is a right that would ideally make a person an equal shareholder in the democracy.
A look at the history of reservation reveals, that it was a person like Shahu Maharaj (a descendent of Emperor Shivaji and Sambhaji) who, though a monarch, living in luxury, enjoying his status of ruler, pioneered the concept of reservation as a social alleviation program for sufferers of the caste system. Though the credit for the concept of reservation must go to Mahatma Jyotiba Phule, it was the peoples King who not only introduced the concept, but also implemented it vociferously. He supported every child who wanted education, supported backward caste entrepreneurs, worked tirelessly for the liberation of women, made inter caste marriages legal and gave equal access to natural resources to all denying any special status to superior castes. The masses therefore bestowed him with title of Rajrishi (royal saint), a title he deserved. However, the 124th Amendment in many senses, heralds the death of democracy in India. The current state of democracy is that of an oligarchy where Brahminism continues to reign and in collusion with capitalism intends to restore its previous state of casteism slowly but surely.
Notes:
[i] The Criminal Tribes Law (Repeal) Act 1952, Act 24 of 1952, dated 6th march 1952
[ii] Report available with author
[iii] Nomadic and Denotified Tribes
[iv] Persecution of Ex Criminal Tribes, report by Sangharsh Wahini 2015