In this article, I would argue that instead of washing off the blot of criminalisation of tribal and nomadic communities, the Indian State has invariably continued with its policy of criminalising these communities, albeit in an indirect and more subtle manner.

The colonial state criminalised the communities by overtly tagging these communities to be born criminal and genetically predisposed towards committing of crimes like theft, murder, kidnapping etc. The Indian state has, on the other hand, jettisoned the idea of ‘born criminals’ but has introduced myriad of laws which directly render all traditional occupations of these communities to be unlawful. Due to this, some of the individuals of the communities who practise traditional activities have again come in the fold of being criminal just because the government has passed certain legislations which transform all their activities erstwhile legal into illegal.

The denotified communities are suffering ordeals from all sides. On one hand, their traditional activities have been made illegal and unprofitable forcing them to leave their traditional work and go for settled livelihoods. On the other hand, these communities are facing immense opposition from settled communities (instances and reasons of which are dealt later in the paper) and legal and economic barriers from the government side in settling over a land tract (dealt later in paper).

Thus, denotified communities are stuck between the devil and deep blue sea. They have neither their forests to live upon nor any land tract to live settled lives as others. They are given temporary lands without any land titles which render them susceptible to being uprooted any time on the whim of the settled communities or the government officials. The agricultural lands provided to them (if any) are mostly non-productive and due to requirement of papers for receiving any benefits and lack thereof, they are unable to receive any.

Due to this continuous criminalisation and other socio-economic backwardness, these de-notified and nomadic communities have been suffering incessant sufferings from the settled communities, police, local administrators etc.

Who are de-notified tribes?

The Renke Commission describes de-notified tribes as those “communities (or ‘tribes’) that, during the British regime, due to specific administrative as well as law and order reasons, were ‘notified’ as being ‘born criminal’ by the British Government under a series of laws starting with the Criminal Tribes Act of 1871.”[1]

The de-notified tribes have their genesis rooted in Criminal tribes Act of 1871. This Act tagged various tribal communities across the British India as born criminals. The reasons for doing this were various accounts of British military adventurers in which they portrayed these communities to be evil by birth and genetically predisposed towards committing crimes of theft, robbery, kidnapping, abduction, murder etc.[2]

After Independence, in 1952, these tribes were de-notified and the Criminal Tribes Act was repealed. Several of these de-notified communities were included in Scheduled Caste, Scheduled Tribes and Other Backward Classes groups. But some were left out too. The denotified communities included in SC, ST or OBC group got certain benefits which the left ones were devoid of. However, one thing common to all these groups is their history of being branded by law as born criminals and the inevitable fate of facing prejudices and discrimination in present society due to their past criminal tag.[3]

The present discrimination and ordeals faced by denotified communities is inextricably linked to their history in British Era. The prejudices once inculcated since the times of British Raj have gotten deeply entrenched in minds of everyone from ordinary people, police, and bureaucrats to politicians. After, Criminal Tribes Act of 1871 was repealed in 1952, various state introduced Habitual Offenders Acts came into being which were more or less same except to the fact that the tribes were not considered ‘born criminals’.

These Habitual Offenders Acts and other laws like Prevention of Anti-Social Activities have given same discretion to the local police and administration like given by Criminal Tribes Act of 1871 to notify any person or community under the law and then to restrict many of their civil liberties.[4] The attitude of police towards the denotified communities is even now the same as was in colonial times.

The Criminal Tribes Act is still the part of police training manuals or syllabus which explains a lot about the sceptic mentality of police officials against the denotified communities.[5] Many local erstwhile criminal tribes have testified that whenever any petty offence of theft, robbery etc., happens, the police comes searching in the denotified communities’ locality and arrests people without any reason.[6]

A suitable example can be of rape incident in Bulandshahar in 2016. The accused belonged to Bawaria community which is a de-notified community and has been getting harassed under tag of criminal gang. The next day of Bulandashahar rape incident, Kiran Bedi wrote on Twitter saying that all ex-criminal tribes are known to be cruel etc.[7]Such incident clearly exposes the deeply entrenched prejudices prevalent in the police system against the de-notified communities.

Although Criminal Tribes Act was repealed, various states have come up with their versions of Habitual Offenders Act which are essentially same. The Habitual Offenders Act is quite similar to Criminal Tribes Act except in fact that the premise of the latter that some tribes are born criminals is not shared by the former.

The relevance of discussing the de-notified tribes and the laws related to them lies in close resemblance in the attitude of the Colonial government and the Independent Indian State towards the de-notified communities.[8] The tag of criminality is time and again re-invoked by the government against these communities on the basis of some act of commission or omission.[9]

Loss of Traditional livelihoods
The first assault, which emanates from colonial times, on these communities in independent India is the advent of myriad of legislations dealing with protection of animals, forests, plants and socio-economic offences. These legislations combined with Habitual Offenders’ Acts of various states renders a lot of discretionary powers to the police and local administration to deal with the habitual offenders under these laws.

The Habitual Offenders’ Act is considered different from Criminal Tribes Act in one main aspect. Contrary to Criminal Tribes Act which targeted entire community as born criminal, the Habitual Offenders’ Act penalizes only the individuals from the same communities mostly.

The introduction of legislations like Wildlife Protection Act 1972, the Forest (Conservation) Act 1980, the Prevention of Cruelty to Animals Act 1950, state legislations related to licensing of liquor, beggary etc., has led to increased criminalization of the traditional livelihoods of these de-notified communities.[10] The traditional activities, which prior to above-mentioned legislations were lawful, have been transformed into unlawful activities. Since, most of these law-making processes are carried out in conspicuous absence of the tribal voices, these laws invariably are unconcerned with needs, culture and practices of the de-notified communities.

For instance, Karnataka Excise Act, 1965 and Karnataka Prohibition Act, 1961 have in effect made illegal any manufacturing or tapping of toddy or liquor without any license. Since, most of the denotified communities have been in traditional occupation of tapping toddy and consuming and selling it, these communities have automatically become criminals as per law.[11] Similarly, under Karnataka Prohibition of Beggary Act 1975 gives unbridled powers to police to arrest the beggars and send them to relief centres. The Act further provides for fine and even incarceration for some period if same person is found for second time.[12]

Since, these legislations in effect have made illegal all the traditional sources of livelihood of the de-notified and nomadic people, any actions done by them either in defiance or ignorance (mostly latter) leads them to be criminal under above mentioned group of laws.

Thus, large number of nomadic and tribal communities is again coming into the fold of being criminal because of laws like this.

No place to settle
Traditionally, the livelihood of nomadic tribes required them to remain mobile and wander across various places claiming no territorial rights over any land. Thus, they do not have any land settlements on their own. On gradual deterioration of their livelihoods, they are now forced to seek new routes to wander or even settle if possible. However, there are two reasons which make their settlement over land a difficult task. First, the prejudice among the settled public which sees the tribes as criminal even now and thus, whenever, such tribes are allocated land by government the settled public on slight suspicion goes on to torch their huts. Second, the lackadaisical attitude of government in upholding the land rights of these people. Below is the exposition on both of these reasons.

Prejudice of the settled public

It is not that all of the denotified communities do not like to be settled. Majority of them desire right over land in present times owing to the decline in their traditional rights over forests produce and resources.[13] The problem lies in the attitude of the village communities, local administration and of government.

The lackadaisical attitude of government

The government’s attitude towards the settlement of denotified communities has been very treacherous. On one hand, it is keen on settling these nomadic tribes so that it is easy to give any benefits to them. On the other hand, the government fails to provide them land title related papers which render them only illegal occupiers of any land subject to expulsion by government officials whenever any developmental projects is earmarked for that land belonging to settlement.

For instance, Forest Rights Act 2006 provides for recognition of traditional rights of the tribal people over land, forests and its products. However, for the grant of land back to the tribal communities, they need to show the tribal certificate which they are unable to procure because for that they need to produce document related to father or grandfather, which obviously are not there. Thus, due to lack of official documents, these communities are scarcely able to assert rights over land and thus always hounded from their temporary localities either by villagers or the government officials.[14]

The appalling entrenched prejudice

The media, police, local administration continues to look down these tribes as criminal. Whenever, a robbery, theft or dacoity takes place, the police at the first instance raids the localities of these communities and usually menfolk of these communities are arrested to show the public that police has rendered its duty.

The Kurava community in Tamil Nadu is a de-notified community which bears the brunt of police suspicion and brutalities. Whenever a crime is reported in nearby area, the police goes on to collect fingerprints and photographs of every Kurava they confront merely based on their own suspicion. Every police station has special registers recording the fingerprints and photographs of every suspected Kuravas.[15]
Pardhi and Maang Garudi communities in Karnataka have also suffered harassment from police officials who have arrested people from communities including even children and old on mere suspicion of committing an offence without any investigation.[16]

In a field survey conducted in Andhra Pradesh (undivided), it came out that, apart from the several instances of discrimination practices against the denotified communities, these people are regularly harassed by the police in regard to so-called illegal activities. Although, cases are not registered in most cases but the harassment continues. When asked as to why they do not seek legal help, they tell that they fear from attacks on to their community by others. Among the sample households, 6.57% of the respondents answered in affirmative when asked whether they have gone to police station. However, only 1.14% of the respondents have responded yes when asked whether criminal case was registered against them.[17]

Public Hatred against these communities

The public reaction against these communities has also been appalling and dangerous.[19] These reactions of the general public is often situated in the fear entrenched in their minds by mostly the media, police and administration against these nomadic and de-notified communities.

The principle of transferred malice often works very strongly against these already weak denotified communities. There have been many incidents where the public has overtaken the task of justice onto itself and without any thinking blamed the incident onto the nomadic or tribal person. In retaliation, in some places like Bihar, entire village was burnt to avenge the alleged rape committed by a nomad male.

In 1995 February, in Kotol village of Nagpur, the paradhis were suspected of committing robbery by police and in retribution, the huts of entire community living in that village was burnt and women tortured. Similarly, in Sep 2001, in Kalamb village of Usmanabad district, the local people burnt down the entire locality of paradhis when suspicion regarding robbery was on to some paradhi. This incident led to complete expulsion of the paradhi community from their locality.[20]

The conclusion which can be drawn is that on the first hand, the traditional livelihood of the denotified communities being lost, they are without any alternative livelihood and since they did never possessed lands, they are now also denied right over land by the communities and they are hounded from the villages, their tents burnt etc. thus, their right to movement, right to public space use is highly contested by the public ideology that these denotified communities people are usually on the run just for on purpose – to commit crime and escape law.

What can be done?
The problem of de-notified communities is also worsened because they lack strong central representation in decision-making process or policy making. For instance, dalit community has had illustrious leaders like Phule, BR Ambedkar, Kanshi Ram etc., who rallied for cause of dalit people. But, such leaders have been mostly absent in case of denotified community.[21]

Two legislations – Protection of Civil Rights Act 1955 and SC/ST (Prevention of Atrocities Act) 1989 – extend protection against untouchability to anyone and against untouchability, violence to SC or ST specifically respectively.[22]

As compared to violence meted out to Dalits, the violence perpetrated on to Nomadic Tribes is entrenched in supposed criminality of the tribes which were earlier classified as criminal tribes. The reluctance or aggression against accommodating nomadic tribes into the mainstream society shown by the settled society is because of the distrust and suspicion towards nomadic tribes.[23] Therefore, the solution to the problem must also be found in the mentality of people.

As is the case with every minority – dalits, women, homosexuals, specially abled people – the phenomenon of Self and Other works in the case of de-notified communities as well. The settled community considers the nomadic tribes to be Other – lesser human – and therefore, very conveniently saddles them with all negative attributes like criminality, filthiness, evil etc. What needs to be done is that the people of settled community need to be sensitized about the humanness of the denotified community; the people need to be made aware of their problems, their culture etc.

For instance, when the de-notified tribe of Chharas in Chharanagar performed a street play about police atrocities on de-notified communities on the eve of First National Convention of the De-notified Tribes, it emphatically moved the audiences which included various police officers, judges, historians, authors, activities etc.[24] This sort of interaction of de-notified tribes with the general public is very important in having to know their humanness which has been lost upon us due to centuries of state induced prejudice against them.

Conclusion
The de-notified tribes have been suffering since the British Era and their plight has not undergone much difference. Although the law which tagged them ‘born criminal’ has been repealed, the tag of criminality on to them has remained in other forms. After the passage of various laws protecting flora-fauna and in relation to socio-economic offences, the traditional livelihoods of the de-notified nomadic communities are made unlawful and thus, the individuals form the communities are now too within the fold of being tagged as criminals.

The loss of traditional livelihoods has rendered their old ways of living hopeless. Since, they have gradually lost rights over forest, they have started to settle and take up new activities but most of the times, due to the long entrenched prejudice, it becomes very hard for them to settle because either the people of the nearby locality have continued suspicion of criminality upon them or the local officials of the government fail to provide them with land title related papers due to lack of caste or tribe certificate required for government benefits. This lack of land title subjects them to incessant threats of eviction from the land by sometimes the settles community or the local officials wanting to earmark the land for developmental purposes.

The most pressing issue related to de-notified community is the appalling harassment of them by the settled communities and the police based on just their presumption of criminality. As discussed in the paper earlier, the de-notified communities have been facing harassment by police, lynching by the public, burning down of their houses by angry mod ready for revenge.

Since, the underlying phenomenon is the state-sponsored prejudice against the de-notified communities, the solution lies in tackling this state of mentality from several perspectives. One, the general public needs to be sensitized with the problems, culture, and way of living of the de-notified communities – that is, their humanness has to be accepted in the form and way as they are. Second, which also emanates basically from the first point, that the government needs to respect the way of living of the tribal people; their traditional rights over forests lands; their culture needs to be respected in all humaneness.


End-Notes:

1. National Commission for De-notified, Nomadic and Semi-nomadic tribes, ‘Report’ (Vol 1, 2008) accessed 13 January 2019.
2. Dilip D’Souza, Branded by Law (Penguin Books 2001) ch 1.
3. Ganesh Devy, ‘For a Nomad called Thief’ (2000) 27(2) IICQ accessed 13 January 2019.
4. Dilip (n 2) ch 10.
5. Vikram Garg, ‘From Notified Criminals to Denotified Offenders’ (The SouthAsianIdea Weblog 27, October 2010) accessed 13 January 2019 ; S Vishwanathan, ‘Suspects Forever’ (2002) 19(12) The Frontline accessed 13 January 2019.
6. Devy (n 3).
7. Meena Radhakrishna, ‘So When was the Last Time a Brahman Gang was Made the News’ The Wire (12 August 2016) bawaria-gangs> accessed 13 January 2019.
8. Meena Radhakrishna, ‘Invented Pasts and Fabricated Presents: Indian Nomadic and Denotified Communities’ (Kunda Datar Memorial Lecture, Pune, 2009) accessed 13 January 2019.
9. id
10. Radhakrishna (n 8).
11. S Japhet et al, ‘Criminal Stigma and Livelihood: Socio-Economic Study of De-notified Tribes in Karnataka’ (2015) 9(1) IIDS accessed 13 January 2019.
12. Id
13. Radhakrishna (n 8).
14. Radhakrishna (n 8); Debashree De, ‘Tribals and Green Governance: Forests Rights Act 2006’ (The Sanhati 16 October 2011) accessed 13 January 2019.
15. S Vishwanathan, ‘Suspects Forever’ (2002) 19(12) The Frontline accessed 13 January 2019.
16. Japhet (n 11).
17. Vijay Korra, ‘Status of De-notified Tribes: Empirical evidence from undivided Andhra Pradesh’ [2017] EPW accessed 13 January 2019.
18. Korra (n 18).
19. Radhakrishna (n 8).
20. Sanjay Kolekar, ‘Violence against Nomadic Tribes’ [2008] EPW < https://www.epw.in/journal/2008/26-27/discussion/violence-against-nomadic-tribes.html> accessed 13 January 2019.
21. Kolekar (n 21).
22. Japhet (n 11).
23. Kolekar (n 21).
24. Devy (n 3).