From criminal savage to habitual offender

"The razor blade was our Laxmi," writes Lakshman Gaikwad in his celebrated 1987 autobiography Uchalya: The branded. "We would pray to the God of instrument (Ayudha) before every outing. We would cut chicken with the same blade and spray its blood on the participants and prayed – 'God, we pray for success in today's stealing mission. Rescue us from Police if we get caught…'" In the work, Gaikwad, a member of the Uchalya tribe, outlines the plight of Adivasi communities in India that had once been dubbed 'criminal' by the state. During the colonial era, members of certain tribes in India were branded as 'inherently criminal' by the British administration, inevitably leading to their cultural and socio-economic marginalisation.

W W Hunter, a senior British official, surveying England's work in India in 1881, noted that "thugi, dakaiti and predatory castes" must be suppressed in order to achieve "a more secure, more prosperous India". It was this general attitude that, a decade earlier, had led to the enactment of legislation to deal with such 'predatory' castes: the Criminal Tribes Act (CTA), which aimed at the "registration, surveillance and control of certain criminal tribes and eunuchs". A 'criminal tribe' was thus legally described as a "tribe, gang, or class of persons … addicted to the systematic commission of non-bailable offences."

While drafting the CTA, some officials were indeed concerned about branding all members of a particular Adivasi community as criminal. Yet at the same time, there seemed to be general consensus that crime in these communities was 'hereditary' or 'habitual', in line with prevailing criminological and scientific thinking. In fact, the idea of a hereditary criminal class also served to deflect attention from enquiries into the real causes of crime, such as poverty, unemployment, economic depression, etc. In colonial India, such hereditary criminality was attributed to indigenous and nomadic communities. In addition, members of nomadic communities were seen to be backward, lazy and to possess criminal tendencies. Henry Mayhew, the 19th-century English journalist, coined the term "vagabond savage" to refer to nomadic communities, while the Scottish writer Thomas Carlyle described them as "still in higher degree the ape". Itinerant communities were seen to be 'restless', and thus suspicious, whereas the sedentary communities who followed Western notions of settlement were seen as respectable. The solution, therefore, was to settle those who were wandering.

The presumption that the Roma community – European 'gypsies', whom the British administration already recognised as 'birth criminals' – originated in India played a significant role in the creation of the category of the nomadic criminal in British India. The latter were seen as the "Oriental representatives of the tent-loving gypsies of Europe". While on the one hand banjaras (nomads) were romanticised for their attractive looks, bright costumes and jewellery, and for the public perception of their exciting outdoor lives, on the other hand they were declared "ferocious criminals" by lawmakers.

'Correctives' and sensationalism
Unlike in Europe, hereditary crime in India was seen by the British administration as being closely linked to the social hierarchy of the caste system. It has been argued that such an assumption was made because, unlike the purely genetic or hereditary link, the social link could be controlled and, thus, corrected by the administration. As such, the room for reform of these 'born criminals' was seen to legitimise the enactment of the CTA in the late 19th century. The marginalisation of itinerant communities began with the implementation of colonial trade and revenue policies. While it would be incorrect to suggest that these categories did not exist in Indian society as a 'lower' social or moral class before the CTA, the long-term impact of the creation of a legally sanctioned social category of 'criminal tribe' cannot be denied.

Among those notified under the CTA were individuals belonging to communities that resisted the British government or the local zamindars, or those who opposed forest laws that encroached on their traditional rights. Itinerant communities engaged in petty trading were adversely affected. For example, the salt policy enacted by the British government to enhance revenue effectively ruined the livelihoods of itinerant salt-peddlers within the Koravar, Yerukula and Koracha communities, as they could no longer purchase salt from the government at high prices. Other members from these communities engaged in entertainment – singers, dancers, acrobats, fortune-tellers – likewise lost their traditional forms of livelihood as modern forms of entertainment became available, and the traditional entertainers increasingly came to be seen as potential threats to public order and private property. In addition, the differences between nomadic, semi-nomadic and other pastoral communities were relinquished once the CTA came into force, which bundled them all together as criminal tribes, despite their ethnic, social and cultural differences.

The CTA gave sweeping powers to the police. Members of the notified tribes and their families were forced to register with the police, and any tribe declared criminal under the CTA could be forcibly moved to another place of residence by the local government. The notified communities under the CTA were to be confined and 'settled' in 'reformatory settlements', where they were to be provided with a livelihood by the local government, comprised of local zamindars. Most importantly, the notification, registration or settlement of the criminal tribes could not be challenged under the CTA, as revised in 1911.

Unfortunately, this cycle of prejudice and discrimination did not end with Independence in 1947. The criminal tribes were officially denotified in 1952, and are now referred to as denotified tribes (DNTs). But a series of Habitual Offenders Acts (HOA) were passed in states across India during the 1950s, which mirrored several provisions of the repealed CTA and have thereafter been routinely used against members of denotified, nomadic and semi-nomadic tribes (DNT-NTs). A 'habitual offender' is defined in the Karnataka Act as a person above the age of 18 who has been convicted of crimes on more than three occasions within a period of five years.

Like the CTA, the HOA provides for the registration and surveillance of habitual offenders by the district magistrate. The state government also has the power to order the restriction of movement of a registered offender to a 'restriction area' for up to three years; such an order can only be cancelled if the state government is convinced that the registered offender is "following a lawful occupation" that is "conducive to an honest and settled way of life" and is "not a pretence … facilitating commission of offences". Again, the police have been given broad discretionary powers of arrest without warrant to deal with those who fail to comply with the HOA. In addition, a habitual offender could be confined in a 'corrective settlement' established by the state government.

The stigma of criminality long outlives the legislative shelf life of laws such as the CTA, and continues to haunt the daily existence of more than 60 million individuals belonging to DNT-NT communities in India. The cases of Budhan Sabar and Pinya Hari Kale, two young men belonging to the Kheria Sabar and Pardhi denotified communities in West Bengal and Maharashtra, respectively, bears testimony to this fact. During the 1990s, both men were picked up by the police, tortured and killed in police custody. In a landmark case, the officers involved were found guilty, and compensation was awarded to the survivors.

Nonetheless, indiscriminate arrests without warrant, arbitrary detention on mere suspicion, constant police surveillance and custodial torture continues to surround the DNT-NT existence today. In September 2007, in a brutal instance of vigilante justice, ten members of the semi-nomadic Kueri tribe were lynched to death by angry mobs in Vaishali District of Bihar on the mere suspicion of theft. An investigative report on the incident by the National Commission for Denotified, Nomadic and Semi-Nomadic Tribes found that there had been no proof of crime in any of those cases, and attributed the killings to deep caste-based prejudice and lack of basic citizenship rights. Media reports further compound this vicious cycle of constructed criminality and discrimination. In November 2008, the Mid Day newspaper reported on the criminal tendencies of denotified tribes as follows:

The criminal tribes of Delhi, a dreaded community infamous for its murders and robberies … has been lying comparatively low … Members of these tribes become more active during the 14 days between the Ashtami of Krishna Paksha to the Ashtami of Shukla Paksha (the period between two half-moons), when the nights are the darkest. The winter fog adds to their camouflage … Their modus operandi has remained unchanged over the years. They move in a group of 10-12, including women and children. They park their vehicles in the outskirts of the city. Posing as flower sellers, carpet sellers, utensil or cloth sellers, a couple of adult members move into the city for a recce [reconnaissance].

Indeed, in recent years larger trends have led to something of a vicious cycle based on these sensationalised fears. The globalising economic climate in India has adversely affected the traditional livelihoods of several nomadic and semi-nomadic communities, such as folk artists, craftsmen, street performers, hunter-gatherers, traditional medicine-makers, etc. Following the enactment of recent conservation laws, those communities that trained and used wild animals for street entertainment, such as the Madari or Kalandar, have been left destitute. As a result, many of these communities have been rendered vagrant, and have turned to begging, stealing or brewing illicit liquor in order to eke out a living. Further, begging and vagrancy are criminalised under Indian law, which legally include singing and dancing, fortune telling, or even "offering any article for sale". Such policies clearly aim at eliminating the poor, not poverty.

Policy responsibility
Today, the government policy on DNT-NT communities has two identifiable elements: legislative measures to regulate their criminal behaviour, and welfare measures concomitant to their regulation. The official committee headed by Ananthsayanam Ayyengar, which recommended the repeal of the CTA in 1949, emphasised the social and economic backwardness of criminal tribes, and urged the adoption of welfare measures to ensure 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." As a result, many of these communities were enlisted as Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBCs), based on their political constituencies in different states.

The policy of reservation in India has consistently ignored the distinctive nature of the DNT-NT claims for justice. The political constituency of these communities is weak as compared to, for instance, the Dalit constituencies, and thus their voices remain largely unheard. The establishment of the National Commission for Denotified, Nomadic and Semi-Nomadic Tribes, in 2003, was clearly a milestone for the DNT-NT rights movement. In July 2008, the Commission submitted recommendations to the Indian government advocating reservations for DNT-NTs in elected bodies, employment and educational institutions and the development of special housing schemes, skills-development programmes and a permanent commission for DNT-NTs. Prime Minister Manmohan Singh has given his assurance that these recommendations are being considered by the government, and that a decision will be reached; during the second week of November, the prime minister noted that he hoped the issue would come before the cabinet "soon".

For the time being, however, these communities remain at the lowest rung of the socio-economic hierarchy in Indian society, as the specific prejudices and discrimination against them remain unaddressed. The inclusion of some DNT-NT communities as Scheduled Castes and Tribes has further antagonised local OBC communities, leading to caste hatred that manifests itself in extreme violence. Thus, mere integration of these communities into the mainstream may not offer justice. As it is, in order to escape the shame and stigma of 'criminality', many of these communities have had to hide their identity – for example, Banjaras in Delhi converted to Sikhism during the 20th century, but they are not considered 'proper Sikhs' by others.

These communities must thus struggle towards re-establishing their original cultural identities through collective engagement, even reconstructing them in creative ways, rather than remaining victims of their circumstances. In addition, legislative horrors like the HOA should be immediately removed from the books, and efforts at ending the isolation that was imposed on DNT-NT communities through their physical confinement in reformative settlements and social ostracism should be initiated. At this point, to attribute the legacy of criminal tribes entirely to the British colonial administration would be false. The responsibility of the Indian social order and government is established through the linkages of the CTA to the caste system and the enactment of the HOA in the post-Independence period. This injustice must be corrected.

~ Ipshita Sengupta is a UNV Specialist with UNHCR in New Delhi.