Criminal Justice System and Tribes in India

I must express my gratitude to the Organisers, who were kind enough to invite me to speak on the subject "Criminal Justice System and Tribes in India." I am a Judge by profession. A Judge is supposed to pronounce judgment after hearing both sides. Conventionally, a Judge is supposed to have no opinion of his own. Even if he holds an opinion, he is not expected to express it, except in his judgments. Therefore I will be placing before you some of my views by way of loud thinking.  I am conscious of the fact that I am talking to an audience which is known for its knowledge and expertize. There is an interesting story about experts. A school teacher once told his pupils that four persons came across an animal. First felt that the animal was like a pillar, the second like a wall, third like a fan and fourth one felt that it was like a rope. Who are these four persons?, the teacher asked. A boy who had read Aesops Fables replied, that they were blind. A bright one got up and said Sir, they were not blind. They were experts and specialists. That is why each saw a part of the elephant. I am a layman without any specialised knowledge, Therefore I will try to see the whole elephant and place before you common man's point of view.  Prior to independence, British Rule had a mixed impact on the different ethnic groups in the country. Even the Europeans and Indians were treated differently. This is borne out by the different procedures prescribed for their arraignment and trial. Though regrettable the differences had a parallel in the past and were certainly not as pernicious as the older ones which discriminated on the grounds of caste or community. This is not to say that the colonial enforcers of law and order meted out even-handed justice to all those under their rule. Their actions were coloured by their perceptions of the local condition and also the imperial fiat. This blending had curious results. Very few amongst the aboriginal groups had come into conflict with the English rulers. The alienation of these groups from the non adivasi ruling powers was well-nigh total. But some sections of the tribals, whether as mercenaries or loyalists of the old order, had clashed with the Britishers. The first group was again divided into the absorbable and the non-absorbable. The first concentrated in the eastern regions were left alone. These lived in inaccessible, infertile and unhealthy regions. Their numbers were few and their isolation from the plains folk required the minimum of policing. They did not harbour ineradicable grudges against the colonial power. The foreign ruler permitted proselytisation and as the missionaries did not demand too sharp a break with the culture of the tribals, the area of conflict was considerably reduced. In this environment the laws were liberal and their implementation was not rigorous. In fact the tribals were looked upon as unspoilt and a sharp contrast to non-tribals whose loyalty was suspect. The indigenous element in the administration had no desire to tangle with the favoured tribals and in any case their contacts with these tribals were too limited to spark lasting repression. The other class of absorbable or ignorable tribals were those whose habitants and inclinations were more or less similar to the inhabitants of the eastern region, A penurious existence, feared and reviled by their non-tribal countrymen and debilitated by the, recurring famines and epidemics, these groups retreated into their shells. Their worsening condition compelled them to pilfer and sell themselves or their womenfolk into bondage. The aftermath of every offence whether big or small committed or suspected as theirs, entailed severe reprisals. The ruling power had the willing co-operation of the non-tribals in the ruthless retaliation. The repression had the designed effect of curbing revolts by the subjugated aboriginals.  The unassimilated, non-absorbable and not to be ignored tribals who constituted the majority met with a different response. The areas they lived in were under strict surveillance. This task was assigned in the first instance to the village servants, the constabulary supervising over them and personal visits to the areas by the higher officers. Every outbreak of crime and assertion of rights — the two being synonymous in the eyes of the rulers — was met with lethal repression. Physical torture was openly resorted to, the common myth being that the tribals being hardened criminals did not respond to other methods. Deaths while in custody may not have been very frequent. But other forms of chastisement like beating, starving and molesting their women folk were rampant. Complaints were shrugged off as exaggerations and not voicable by or on behalf of those who richly deserved the treatment meted out to them. The police always anxious to reach or overreach their 'quotas' had no compunction in cooking up cases against the unfortunates. Whole hamlets and localities of the miserabec people were lined up whenever crimes against property took place. In unsettled times it was common to compel whole villages or localities of the tribal populations to spend the hours between sunset and sunrise in compounds of police stations. Periodical attendance by the entire adult population of the suspects at police stations was commonly enforced. The magistracy, more loyal to the crown, than the Emperor's kith and kin, was most ruthless in dealing with the tribals. Bail was denied and if granted so conditioned as to make it well-nigh impossible to be furnished. Sentences were grossly disproportionate, the first offender being lucky if he got a sentence of whipping. Two points require to be made. Firstly, the colonial rulers could be repressive towards the tribals because the non-tribals were their allies and perpetrators in the worst of atrocities upon the tribals. Next, there has not been much of an improvement in the attitudes after independence.  Mahatma Gandhi wrote in 'Harijan' dated 1st August, 1936:  "Perhaps there are not many places on this Globe where crime is the profession of tribals asit is in India and it flourishes under the garb of religion. We have therefore in this country, a law called the Criminal Tribes Act."  It appears from the article written by Gandhiji that Adivas is were told by some persons that if they embraced Islam, they would be helped to become free from the application of the Act, and the stigma of being criminal tribe would no longer attach to them. Gandhiji also observed that 'criminal tribes and untouchable castes are a scourage upon Hindu Society for its godless treatment of its own members in the sacred name of religion. You cannot have a diseased limb without the whole body being affected. Therefore, the only effective method is to reform from within."  In a representation submitted by Rajwar Community of Bihar to Gandhi, a complaint was made, that whenever there was any theft or larceny or dacoity or any other crime in locality where this  community was living, the first suspicion and the first brunt of the police enquiry must be borne by it, although there may not be slightest evidence for the same. The whole community was subjected to the rules and regulations of Criminal Tribes Act. The members of this community, if they wanted to give their sons and daughters in marriage to those living in a different district, they were not allowed to do so. They were obstructed by the authorities as well as caste people by adopting all possible means, so as to make suchalliance impossible (See Young India dated 25-6-1931). These were known as Slave Communities. State has delegated the legitimate use of violence to its police department. As a result police find themselves both in dispensing violence in the name of the State and Preventing others from using violent techniques to achieve their own private ends. The club and gun symbolise this authority and permit him either to persuade or to enforce compliance with the law. There is an inherent contradiction in the police efforts to enforce law and keep peace. The duty is made complicated by two factors:  Nature of the law and The nature of the working relationship the officer must develop with people. With tribals police have only one relationship, that is, to treat them as criminals, because skin colour is visible whereas income is not. In our country poverty it self is a crime. This is not a Problem of Law and order, but of social disorder, about which we are least worried. Article 14 of the Constitution declares that the State shall not deny to any person equality before law or equal protection of laws within the territory of India. However, at least up to 1952 the Criminal Tribes Act, 1924remained on the Statute Book. The Criminal Tribes Act, 1924 came into force on 15th of March, 1924. It was an Act of consolidated laws relating to criminal tribes. The very title of the Act was disturbing. I fail to understand as  the Tribeasa whole could be Criminal. It is also surprising as to how a person becomes criminal only because he is born in a particular tribe. A label of criminal is attached to his personality since his birth. Normally society creates the crimes and then criminals commit them. But in India tribe it self was declared as a criminal tribe. If the Provincial Government had reason to believe that any tribe, gang or class of persons or any part of tribe, gang or class is addicted to systematic commission of non-bailable offences, then the Government was authorised to declare that such tribe, gang or class, as the case may be, is a criminal tribe for the purpose of the said Act. The Act required registration of members of criminal tribes. It laid down procedure, for such registration or its alteration. The District Magistrate or an officer empowered by him, in that behalf, was authorised to take finger impression at any time. The members of the criminal tribes were required to report themselves at the fixed intervals and notify places of residence and any change or intended change in the residence to the authorities concerned. The Government was empowered to restrict the movement of the ' tribes or settle their place of residence. It had power to establish industrial, agricultural or reformative settlement for the criminal tribes. In substance there was special legislation dealing with the criminal tribes. This Criminal Tribes Act, 1924 came to be repealed by the Criminal Tribes Laws (Repeal) Act, 1952 from 6th of March, 1952. However, though the law came to be repealed the practice still persists at least in some parts of our country. I am told that in the courses taught in Police Training Institutes and the books prescribed therein a reference to the criminal tribes is still made.  It is well known that equality envisaged by the Constitution of India means equal treatment to equals. To treat unequals equally is not equality. Therefore the Constitution itself provided for certain concessions to the backward classes so as to achieve the goal of equality. Article 15(4) declared that nothing in Art. 15 or Cl. (2) of Art. 29 shall prevent the State from making any special provisions for the advancement of socially and economically backward classes of citizens or for Scheduled Castes and Scheduled Tribes.  Article 19(5) also provided that the State can impose reasonable restrictions on any of the rights conferred by Art.19 either in the interest of general public or for the protection of the interest of the Scheduled Castes or Scheduled Tribes. Article 23 prohibited traffic in the human beings and also forced labour. By Art 25 freedom of conscience and free profession, practice and propagation of religion is guaranteed. Article 29(1) deals with the protection of interest of minorities. By Art 46 the State is ordained to promote with special care education and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and Scheduled Tribes and to protect them from social injustice and all forms of exploitation. Proviso to Art. 164(1) lays down that in the States of Bihar, Madhya Pradesh and Orissa there shall be a Minister in charge of Tribal Welfare who may in addition be in charge of the Welfare of the Scheduled Caste and the backward class etc. Chapter X of the Constitution deals with the Scheduled and Tribal areas and with its administration. A special provision for grants for the scheduled area is made by Art. 275. By Art. 330 reservation of seats for Scheduled Castes and Scheduled Tribes in the House of People is contemplated. Article 335 recognises claims of the Scheduled Castes and Scheduled Tribes to the services and posts in connection with the affairs of the Union or the State. Article 338 provides for appointment of special officer for the Scheduled Castes and Scheduled Tribes. By Art 339 the control of the Union over the administration of the schedule areas and welfare of the Scheduled Tribes in the State is provided for. By Art 342 specification of Tribes or Tribal communities is contemplated. Article 371-C makes special provisions with respect to the States of Manipur and Nagaland. Therefore to carry out the mandate of equality as enshrined in the Constitution of India, special provisions are made in the Constitution so that unequals will not be treated equally. If the provisions relating to these concessions were not incorporated in the Constitution, then the Chapter dealing with the fundamental rights or equality would have become inhuman and unequal in its operation. These provisions were necessary to achieve the object of distributive justice.  The Supreme Court had an occasion to consider the concept of distributive justice in Lingappa Pochanna Appealwar v. State of Maharashtra, AIR 1985 SC 389 in the context of the provisions of Maharashtra Restoration of Land to Scheduled Tribes Act. This is what the Supreme Court, in paras 17 and 19 of the said judgment, observed :  "17. In the past forty years, most of the tribal societies have come under attack by economically more advanced and politically more powerful ethnic groups, who infiltrated into tribal regions in search of lands and new economic possibilities. These population movements triggered a struggle for land in which the aboriginal tribesmen were usually losers, and deprived of their ancestral lands, turned into improverished landless labourers. In order to meet the situation the legislation had been brought, in to save the tribals from extinction and prevent their enslavement and degradation as destitutes. One has only to read Professor Cristoph von Furer-Heimendorfs "Tribes of India". The struggle for survival to understand the enormity of the social crimes that the non-tribals have been committing against the tribals. As the learned author rightly points out :  "It is inherent in any plan for the protection and support of tribal minorities that whatever benefits are envisaged for tribesmen must adversely affect the interests of some more advanced sections of the population. Alienation of tribal land cannot be prevented without depriving non-tribal land-owners of the chance to enlarge their holdings, a curb on exploitation by money lenders interferes with the activities of local businessmen, and any attempt to eradicate corrupt practices of minor officials diminishes the income from dealings with ignorant and illiterate tribals. Thus any policy of tribal rehabilitation arouses the opposition of vested interests."  19-D. Bandyopadhyaya, Joint Secretary, Ministry of Labour, Government of India and B. N. Yugandhar, Special Assistant to the Deputy Chairman, Planning Commission in their Report submitted to the Government in 1975 brought out the reasons for the justified sense of grievance felt by so many tribal populations in these words:  "The Girijans came in touch with the administration only in a State of confrontation when they were tackled for infringement or infraction of one or the other regulation which in fact abridged, annulled or tinkered with their customary rights and privileges. Thus the Girijans of the Parvathipuram Agency Tract found themselves to tally alienated from the administrative machinery and newly set up self-governing institutions and were denied opportunities of gainful economic activities. They suffered not only from poverty but also from a deep sense of insecurity. They found themselves deprived at each point and at each front. A deep sense of grievance and injustice enveloped the entire tribal population through decades ,of neglect by the local administration".  These observations aptly apply to the field of criminal justice also. The observations that the Supreme Court made namely the "social crimes that the non-tribals have been committing on the tribals" are not only pertinent but also very important. Even today enormity of social crimes that the non-tribals have been committing against the tribals is not minimised. To say the least, various social legislations and the Constitutional provisions have not made any change in the attitude.  The Constitution of India only recognises one citizenship that is Indian citizenship. There is vast distinction between the concept of domicile and citizenship. However, a confusion exists even today regarding these two concepts. In our country concept of 'citizen of India' is merely a fiction and not reality. I van Illish has come out with a book "The Celebration of Awareness". What this awareness mean? It connotes your roots. Your roots mean your separatist identity, which identities isolate you. This feeling of particularism puts you on the defensive and it is well known that nothing isolates as an attitude of defence. The result is we have several specimens, several varieties of citizens in this country except pure Indian citizenship, unqualified, unadulterated, unmodified i.e. pure and simple citizenship. Except this we have all varieties of citizenship, including fractional citizenship. Women, untouchables and Adivasis are not whole numbers. They are not integers but fractions of humanity. They are not recognised as possessing a whole soul except in theory. In actual life an Adivasi has never been regarded as an individual. Therefore, even today adivasi is treated as secondary citizen. To say the least a second class human being. Others are more equal than him in every respect. This is so even in the field of criminal justice. I had before me a case which is a candid example of this. That was a case wherein a letter written by Shri Kaluram Dodhade President of Bhumisena of Thane District was entertained as writ petition. Amonst other allegations made in the plaint, one of the complaint made was that the police never take any cognisance of the complaints made by the scheduled tribes or Adivasis. It was noticed that the Adivasis in Thane District were being exploited in every respect by the rich money lenders or landlords. Ultimately by an order of the Court in Criminal Writ Petition No. 38 of 1984, the Court had issued certain directions as a result of which Rule 114-A was inserted in the Bombay Police Manual. The said rule reads as under.  "Rule 114-A (1) : The complaints or the F.I.R s. filed by the members of the Adivasi community should be always and without fail recorded and promptly investigated and inquired into by the Police Station Officer or the Police Sub-Inspector or In charge of the Police Station. No complaint or F.I.R. should be left unattended to in the police station or the complainant made to wait without action. Gravity of any complaint shall not be minimised under any circumstances. A quarterly return in regard should be submitted to the Director General and Inspector General of Police for every quarter. If any member of the Adivasi community is arrested in connection with the cognizable offence, information about his arrest may be communicated to the members of his family or relatives when such person or persons visit the police station for enquiry. If any woman is arrested and taken into custody by the police for remand along with her child which needs breast feeding then the fact that the accused has a sucking child should be invariably mentioned in the arrest panchanama, remand yadi and other relevant police record. While such child is in the Police custody along with its mother all reasonable care should be taken for welfare of the sucking child by providing milk, food, required cloths, clothing, bedding etc. and the necessary medical aid etc. As soon as any woman of the Adivasi community is taken into police custody the information of her arrest should be communicated to the Chairman of the Legal Aid Committee of the, respective area." As a result of the directions given by the Division Bench of the Bombay High Court, to which I was a party, in the Home Department a special cell has been designated for dealing with the complaints made by the Adivasis. I do not know as to whether the directions incorporated in the Police Manual are being carried out in letter and spirit, because in the social life of our country there is no machinery available providing for check and counter-check in the matters of implementation of laws and schemes relating to tribals. To say the least, million dollar question before the Democracy is as to "who will watch the watchman "and it appears that there is no existing Institution in social fabric of our country, who could be asked to carry out this duty of watching the watchman.  Criminal laws are common for tribals or non-tribals though its execution and administration differs because of the social inequalities. We have in our country a very strong tribal panchayat system still working in the tribal areas. Recently I had been to Jagdalpur in M. P. where I was told that the conviction or acquittal in a court of law mainly depends upon the decision taken by the tribal panchayat. Before the matter is decided by the court of law it is placed before this tribal panchayat. This panchayat then decides as to whether the men should be convicted or acquitted. If the panchayat decides that he should be convicted then the witness before the court will support the prosecution. If the Panchayat decides otherwise then the every prosecution witness becomes hostile. Thus even today it is not the court of law which decides the guilt of tribal. Normally it is the Tribal Panchayat which decides the guilt or innocence of the accused. I am told that 'this practice prevailsin the Tribal Districts of the State of Maharashtra also including Thane, Dhule, Amravati and others. What is the sanction for these panchayats? The sanction is excommunication from the tribes. In this context I would like to make a reference to the Bombay Prevention of Excommunication Act, 1949. On 10th November 1949 this Act was passed by the Provincial Legislature of the then State of Bombay declaring the practice of excommunication to be in valid. It also prescribed penalty for offence of excommunication. Section 3 of the said Act read as under :  "Notwithstanding anything contained in any law, custom or usage for the time being in force to the contrary, no excommunication of a member of any community shall be valid and shall be of any effect."  The Act also provides the penalty for the offence of excommunication. The background of the said Act is clear from the preamble of the Act which reads as under : —  "Whereas it has come to the notice of Government that the practice prevailing in certain communities of excommunicating its members is of ten followed in a manner which results in the deprivation of legitimate rights and privileges of its members;  And whereas in keeping with the spirit of changing times and in the public interest, it is expedient to stop the practice."  After coming into force of the Constitution, by Article 17 untouchability came to be abolised. There is very little difference between the evil practice of untouchability and practice of excommunication. This excommunication is the weapon used by the tribes against its members for enforcement of their evil and illegal customs also. However, unfortunately the said Act came to be challenged by head of the Daudi Bohra Community. The Division Bench of the Bombay High Court consisting of Chief Justice Chagla and Justice Bhagwati negatived the contentions raised on behalf of the head priest of Daudi Bohra Community. In Saifuddin v. State of Bombay, AIR 1962 SC 853, by a majority judgment the Supreme Court declared the said legislation as void and reversed the judgment of Bombay High Court.  Therefore, today there is no law in the field which prohibits excommunication. The excommunication is a weapon which is frequently used by the heads of the tribes for perpetuating evil and illegal customs. This puts in jeopardy the whole process of criminal justice. Therefore today in the field of criminal justice there is a parallel judicial system so faras the tribes are concerned. Therefore, in my view an enactment prohibiting excommunication from tribes and communities is absolutely necessary and this should be done even by amending the Constitution. Because of the inbuilt constraints and the sanction to the excommunication, the tribes are even today governed by their own laws and customs.  (Emphasis added—Ed.)  This is not the end of the matter. It is many times noticed that while appreciating the evidence of witnesses different standards are applied even by courts of law. The findings as to the guilt many times depends upon the quality of the evidence and not so much on the quantity. Quality of evidence many times depends upon the quality of oral evidence and this quality of oral evidence in its turn, depends upon the respectability of the witness. Though Article 14 declares that there is an equality before law, still even in the matters of appreciation of evidence tribals are not treated equally with the forward class. Respectability of a witness depends upon his social, economical and educational status and it is presumed that rustic adivasis, not being moneyed men are not respectable. Therefore his evidence is appreciated and accepted with a pinch of salt and not at its face value. As a matter of fact a rustic tribal woman is apt to speak truth because her notion about truth and untruth is not tainted but unfortunately her evidence is not accepted at its face value, because some courts feel that she could be tutored or purchased. Adivasi witness is not treated as a respectable witness. This is so because we are still preoccupied by our notions of criminal tribes. Though it is proclaimed by the Constitution that the tribals and non-tribals will be treated equally and. there will be equality before law, in practice, inequality still persists and this is the reason why certain special provisions are necessary for dealing with the complaints made by the tribals.  Even today whenever an offence relating to property takes place, first thing the police does is to raid the tribal village or the hamlet, because it is felt that the tribals still profess or live on crimes. Prepossessed by this notion the police still arrest the tribals without any rhyme or reason. As there is no scientific method for investigation of the crime in our country, and the culprits being the only source of investigation, the use of third degree method is rampant so far as alleged criminal tribes are concerned. Therefore custody deaths are also not unknown. Nobody is shocked by this custody death because the society feels that the deceased is equally responsible for his own death. Therefore, in criminal jurisprudence, a tribal is always taken to be an accused though the presumption is otherwise i.e. a person is deemed to be innocent unless proved guilty. In cases of tribal accused, presumption is that he is guilty unless it is established that he is innocent. Thus the theory and practice differ in every respect. Rape on a tribal woman, or atrocities on them are not taken seriously, as if it is normality or they deserve it. In my humble view unless our very notions of criminal justice are re-examined and drastically changed, tribals in this country will never get justice. A question was asked to Martin Luther King as to what he expects from a white man for solving the question of black men and in his humble way he replied, "if you want to solve the question of black men give a white mana white heart". In my view, therefore, unless there is a change in approach and attitude, there is no solution to this problem .It cannot be forgotten, as observed by Elbert Hubbard, that "Criminal is a man who does by illegal means what all the rest of us do legally". This is true at least about tribals. Rather a man's capacity to break laws alone decide his dignity and statuts in the society.  While awarding sentences, also, the tribals are not treated equally. Many times a severe punishment is imposed on the ground that in cases of tribals there is practically no scope for improvement because of the environmental distinction. In this context I would like to draw your attention to the observations of the Supreme Court in Mohd. Giasuddin v. State of Andhra Pradesh, AIR 1977 SC 1926 : 1977 Cri LJ 1557:  "Progressive criminologists across the world will agree that the Gandhian diagnosis of offenders as patients and his conception of prisons as hospitals mental and moral — is the key to the pathology of delinquency and the therapeutic role of 'punishment'. The whole man is healthy man and every man is born good. Criminality is curable deviance. The morality of the law may vary, but is real. The basic goodness of all human beings is a spiritual axiom, a fall-out of the adyaita of cosmic creation and the spring of correctional thought in criminology.  If every saint has a past, every sinner has a future, and it is the role of law to remind both of this. The Indian legal genus of old has made a healthy contribution to the word treasury of criminology. The drawback of our criminal process is that often they are built on the bricks of impressionist opinions and outdated values, ignoring empirical studies and deeper researches.  India, like every other country, has its own crime complex and dilemma of punishment. Solutions to tangled social issues do not come like the crack of dawn but are the product of research and study, oriented on the founding faiths of society and driving towards that transformation which is the goal of free India. Man is subject to more stresses and strains in this age than ever before, and a new class of crimes arising from restlessness of the spirit and frustration of ambitions has erupted". 'Thomas Fuller' rightly observed "To punish and not to prevent is to labour at the Pump and leave open the leak". Be it our part to stand for all those who suffer, in the words of Rabindranath, for those who are "the poorest, lowliest, and the lost".  Let me conclude with the words of Shelley who said that Poets are the acknowledged legislators of the World, and sang—  "Are we not formed, as notes of music are, For one another, though dissimilar."  The Poet and Adiwasis are waiting for an empathic "Yes" from a gathering like this.

Author Name: Hon’ble Justice Chandrashekhar S Dharmadhikari