A Bhopal-based project is working with persecuted denotified tribes to bring in much-needed legal interventions
Tasveer Parmar remembers the first time he was taken to the police station: He was slapped awake by a policeman in the night, and along with his father and a few other members of his family arrested on the charge of theft. This was while his school exams were on. He was 13. The children were sent to the juvenile home, where they were beaten. The beatings in juvenile shelter homes are worse than in the police station, says Tasveer. After eight days they were finally released. A complaint with the State Child Rights Commission was dismissed some years later.
Tasveer, now an adult, and working with NGO Muskaan that’s focussed on providing education to children in Bhopal, says there is no child from his community — Pardhi — who hasn’t seen the inside of a police station. Pardhis are a denotified tribe, among India’s many, and carry the colonial era stigma of being habitual criminals.
In 1871, the colonial British government passed the Criminal Tribes Act — a legislation that allowed for entire communities to be branded as criminals. The reasoning, it’s been speculated, was based in casteism, with its rigid hierarchies and understandings of caste occupations. The communities labelled criminals were often nomadic or socially marginalised.
Since they were believed to be “born with criminal mindsets”, they were in need of stricter policing. The Act subjected them to broad surveillance: roll call, searches of their residences, the authorities had the power to remove ‘contrivances for enabling the residents… to conceal stolen property’; their movement was severely restricted, and state governments had the power to move them to “reformatory settlements”.
A Bhopal-based project is working with persecuted denotified tribes to bring in much-needed legal interventions
The numbers of these criminal tribes were not fixed either. According to the Idate Commission report of 2017, from eight communities in 1871, the list of criminal tribes grew to 200 by 1924. The 1891-92 report on the Administration of Punjab listed 246 names in the register for criminal tribes, in the report from 1892-93 this number had reduced to 243, and the following year to 221. The increase owed mostly to three factors: amendments to the CTA, enactment all over British India (by 1911), and criminalisation of professions.
In 1952, the Indian government repealed the 1871 legislation leading to these communities’ classification as “denotified” tribes. Despite this, the stigma of crime has carried far beyond its expiration date, continuing in the present, colouring also their future. This is in no small part due to the ambiguous message of the state governments, which repealed the CTA, only to replace it with new laws for “habitual offenders”. In a Twitter thread, historian Sarah Gandee has written that the laws essentially define a habitual offender as a person who has been sentenced for two or three offences. “This included sec 110 of CrPC (i.e. “bad livelihood”, including the vague “offence” of being “so desperate and dangerous” as to make one “hazardous to the community”). In other words, you could be declared a HO even if you had not committed a crime, but you had been deemed a threat to society. Like the CTA (Criminal Tribes Act), this placed huge discretion in hands of local officials and worked along lines of prejudice.”
“When it comes to these communities, the police largely rely on this narrative of them being criminalised so minors are picked up. Eight or nine year olds are picked up for theft, that’s how the run in with the criminal justice system begins, it starts very early,” says Nikita Sonovane. Sonovane and Ameya Bokil, lawyers based in Bhopal, have started the Criminal Justice and Police Accountability Project (CPAProject) — a research and litigation intervention against criminalisation of communities and on decarceration. They have worked largely with the Pardhi community. Their new initiative is aimed at denotified tribes, as well as other communities that are similarly persecuted and stigmatised by the criminal justice system.
An illustration of the systemic faults in the treatment of these communities is provided by Indramal Bai’s case. In November 2017, Indramal Bai, a scrap dealer in Bhopal, tried to immolate herself following frequent and unrelenting harassment by the police for bribes. Bokil says: “We saw this as an institutional murder. I was involved in the case from the beginning and we both saw it through the fight in the High Court.” He says the police first refused to register the offence against the policemen. “They carried out a pre-investigation enquiry absolving the policemen during which, they forged hospital records, suppressed crucial evidence, got people from Bajrang Dal/ VHP to give irrelevant testimony about how the Pardhis are criminals”.
The police also gave a statement to the press that she was a criminal and that she was drunk; and said in open court that Pardhis are criminals. They “brought up records of her ‘criminal antecedents’ i.e. records of previous cases against her, as if that justified her death”, and “suppressed the details about the cases because she had been acquitted of all but one case. The one case was still pending.” But in this case, owing perhaps also to widespread protests, the High Court ordered a CBI inquiry into the incident.
Members of the Pardhi community gather for a meeting. Photo courtesy Pallav Thugdar/Muskaan
Members of the Pardhi community gather for a meeting with Muskaan workers. Photo courtesy Pallav Thudgar
Tasveer cites another case of Tinti Bai, a 14-year-old Pardhi who committed suicide following harassment from the police. According to a report: “An investigation by the MP Human Rights Commission also concluded that the accused police personnel should be booked for instigating her suicide and that compensation be paid to the family. However, since the commission is only a recommendatory body, these conclusions could only serve as the basis for a police investigation, which was begun, but never concluded. Tinti Bai’s family members and neighbours gave several rounds of testimonies, only to find no resolution or justice at the end of it all.” Tasveer says 10 years later the policeman who was held responsible for her death was promoted and no action of any consequence was taken.
There are no constitutional provisions for the protection of denotified tribes, nomadic and semi nomadic communities. Even the exact numbers of these communities is not known. The latest attempt — by the Idate Commission — had to rely on older reports and consultations to prepare a list, since funding to do a pan India survey was denied. Their status differs from Scheduled Caste, to Scheduled Tribe, to OBC from state to state and in some states from district to district. In Madhya Pradesh, the Pardhis are SC in one district, ST in another, and fall in the general category in Bhopal. The Banjaras are SC in Delhi, ST in Rajasthan, and OBC in Uttar Pradesh. The report also states: “lt was observed during the field visits that different generations of same community have been issued different community certificates, for example in Tamil Nadu, a case come to the notice of the Commission where the grandfather was holding a certificate of SC community while the father was given ST certificate and the son had a certificate of Denotified Community.”
Protest at Roshanpura, Bhopal, by Pardhi community members
In the 2019 budget it was announced that a committee would be set up under the Niti Ayog to identify and classify statewise the denotified, semi nomadic and nomadic tribes. A task that the Idate Commission had failed, though the commission report repeatedly states the lack of funds that led to planned field visits being cancelled. In 2020’s budget there was no mention of the DNTS, SNTs, and NTs. The recommendations of the Renke Commission (2008) and Idate Commission have not been enacted.
Identification has been a major hurdle in providing welfare to these groups. An analysis of the budget for the schemes for the development of the DNTs across six years shows a slow growth: “While the budget slightly increased in 2018-19 — Rs 10 crore from Rs 6 crore, it has been stagnant since then. It was significant to note that the actual expenditure for each year has been below the budgetary allocation, showing the inability of DNTs to avail of funds and resources meant for them.”
This disarray extends to the laws that target these communities. Their traditional occupations have been rendered illegal, there is little acceptance in society, and their existence on the margins also faces frequent harassment by the police. “The psychological stress is high and reactionary suicides are frequent,” says Pallav Thudgar, who has been working with these communities for the past 15 years, most of it with Muskaan. He says that earlier people consumed DDT to kill themselves, these days hangings have become the preferred method. “This narrative that they are thieves has existed since 1871; what now, what is being done to rehabilitate them? The jungles have been taken from them, they are not allowed space in the market to do any trade, no one wants to hire them, the garbage picking doesn’t make them enough money to survive, what should they do?” In the lack of any other means, many of them have turned to collecting scrap that earns them about Rs 150 a day, surviving on their day-to-day earnings.
Thudgar says these communities are so weak, they have no political clout and can’t fight for themselves. They live in ghettos, aren’t accepted outside, and can’t even find a spot on the road for work. “Woh kalpana bhi nahi kar sakta ek dukaan lagane ki. (They can’t even imagine putting up a small shop).”
Bokil and Sonovane talk of the rigidity of the system when it comes to these communities, that their main struggle has been to just have procedures followed. Besides the police, the response of lawyers needs to be examined as well. Sonovane says, “There is a major gap in terms of the sort of access they have to legal representation. When someone is picked up, there is a certain procedure of law — they are required to be produced in a court within 24 hours. A minor is not even supposed to be kept in police detention, they are supposed to be sent to the observation home. All of these procedures are flouted… There’ll hardly be a Pardhi family that is not dealing with a criminal case, so there is heavy dependence on lawyers because that’s how frequent their run in with the criminal justice system is.”
“The lawyers in this case are largely brokers, they are the middlemen between the police and the judicial system, that’s the role they have been playing because mostly everybody is convinced of the criminality of these people. Nobody wants to take their case because it’s understood ‘Pardhis to chori karate hi hai’ and the police exploits this belief. If there has been a theft and they don’t know who to pick up, they’ll go to the Pardhi locality, pick someone up and pin it on them — men, women, children, anyone,” Sonovane notes.
“The matter of legal representation doesn’t come up until the matter goes to court, but there is a lot that happens in the interim period between when someone is arrested and produced before the court. They are subjected to torture, very often the matter doesn’t even reach the court because the FIR isn’t registered, because families are coerced into paying money, and during this time the accused person has no legal representation whatsoever. This is a question that only comes up when someone is produced in court and when it reaches that stage also, legal representation is largely limited to securing bail, which in itself is another exploitative system because people are required to furnish assets as surety to secure bail which a lot of people don’t have, in which case lawyers act as middle men to procure state surety, so people are released on bail. When we started working these challenges were largely about the police but also to deal with this lawyering response of a kind… that only emerged in a particular space and to navigate that space has and continues to remain a challenge. Also, it is very evident to us that certain communities are targeted under certain laws, but there is no data to back that up, so that is still a vacuum.”
Many of these communities were dependent on forests and wildlife for their livelihood. The Wildlife Protection Act and Prevention of Cruelty to Animals Act has directly affected their livelihoods. Communities such as the sapera, madari, qalandar, have had their traditional occupations taken away under these Acts but no rehabilitation has been provided for them. The Pardhis are known to hunt teetar (partridge) which is not an endangered species or even close to the brink, but hunting them can earn a prison sentence of three to six years. Tasveer responds, “Aapke liye janwar itna important hai, par insaan ki jaan ki koi importance nahi hai? (There is such concern for animals, but what of human beings?)”
A survey of the data on environmental crimes as reported by the National Crime Records Bureau reveals the lopsided use of these acts against the poor and vulnerable.
Besides the criminal law provisions like theft and dacoity which are commonly deployed against these tribes, Sonovane says, legislations like the Arms Act are arbitrarily used against them. Someone in possession of a knife is booked under it; Excise Acts, Anti beggary laws, and now even cattle transport laws are used against them.
The CPAProject, besides litigation, will carry out research into the criminal justice processes deployed against these persecuted communities. The project website states: “This would include a study of acts of executive action, arrest, detention, bribe-taking, torture, production, bail, collection of evidence and presentation of evidence before the courts and their decision through an appraisal of the police and court records along with interviews of the accused persons and state actors. In the same manner, we will examine the system’s reception to resistance to these violations whether through complaints or arguments during the court processes. We also intend to study the impact of substantive criminal laws themselves.
There have been criminal justice interventions, but no legal interventions in the past, say Sonovane and Bokil. Organisations such as Delhi-based Prayaas that works largely with children, and National Law University’s Project 39A, have worked on these issues, but nothing so far has been aimed specifically at the denotified, semi nomadic and nomadic tribes.
A notable judgement though was in the case of Ashok Maruti Shinde vs State of Maharashtra. Six men — Ambadas Laxman Shinde, Bapu Appa Shinde, Ankush Maruti Shinde, Rajya Appa Shinde, Raju Mhasu Shinde and Suresh Nagu Shinde — were convicted for murdering five members of a family of guava pickers in Nashik in Maharashtra in 2003. Ankush Maruti was released in 2012 once it had been established he was a juvenile at the time. The remaining five spent 16 years on death row, until March 2019, when the Supreme Court overturned its own verdict.
The Shindes are Vadars, a subset of the Pardhi tribe. Traditionally they were hunters but have now shifted to stone breaking, collecting scrap, road laying and ditch digging.
Clearing them, the judgement said there had been “no fair and honest investigation”, adding, “we strongly deprecate the conduct of the police and the prosecution”.
There is a sense of the resistance within the community growing. In 2014, the National Alliance Group for denotified tribes was formed, to work on social, developmental, and cultural aspects, but is now moving towards political engagement. Bokil says, “Women are strong in the resistance. There is this courage… Indramal Bai’s death was followed by months of protests, for a month, people put up tents and stayed there… There are others using art, lots of people writing poetry. Indramal Bai’s case was also made into a play… the mobilisation for Indramal Bai led to lesser discrimination in that jurisdiction at least”.
Courtesy : Firstpost