[atp-news] Stigma of Criminality: India's Denotified and Nomadic Tribes

Petra Bursee (Adivasi-Tee-Projekt) petra.bursee at adivasi-tee-projekt.org
Mit Jul 14 14:21:18 CEST 2004

Liebe ATPlerInnen und FreundInnen,

ein interessanter Artikel von der Adivasi Koordination, der auch noch mal die Hintergründe zum neulich verschickten AKD-Vortrag über den Nordosten Indiens (Zwangssiedelung der Adivasi in den Teeplantagen Assams) deutlich macht. 

Liebe Grüße, Petra

Stigma of Criminality: India's Denotified and Nomadic Tribes

>From HUMAN RIGHTS FEATURES embargoed for 9 July 2004

CORE Centre for Organisation Research & Education 

(Indigenous Peoples' Centre for Policy and Human Rights in India's North East)
Email: coremanipur at coremanipur.org 

The discrimination, abuse, and social and economic marginalisation faced by millions of Indians belonging to 'denotified and nomadic tribes' (DNT-NTs) have their roots in 19th century British colonialism when such tribes were 'notified' by the British as being inherently "criminal". However, this historical pattern of marginalisation and abuse continues today, and is a blight on
India's human rights record and its declared commitment to the equality and well-being of all its citizens under both domestic and international law. 
The British had sought to control and contain these landless and nomadic "criminal tribes" through a series of Criminal Tribes Acts propagated throughout the different geographical and administrative units of India. The first Act, passed in 1871, applied only to areas in north India; however, in subsequent Acts, and particularly in 1911, the measures were extended to all of British controlled India, and altered to include ever-more draconian features. 
These Acts gave sweeping powers to the local governments to recommend that certain "tribes, gangs, or classes" be declared as being "addicted to the systematic commission of non-bailable offences". Once a tribe became notified as belonging to a criminal class, all members of the group were required to register at a specific time and place with the local magistrate. Anyone
failing to register would be charged with a crime under the Indian Penal Code.
Further, the Act gave broad powers to the local government to forcibly move these 'notified' tribes to 'permanent reformatory settlements'. Labelling such areas as settlements glosses over their true nature as virtual prisons, as anyone belonging to one of the 'notified' tribes could be imprisoned for "escaping" from their reformatory settlement, or for being anywhere "beyond the limits so prescribed for his residence."  The settlements that were created served as de facto labour camps, with contractors requiring cheap manual labour farming out members of the settlement camps. Thus the members of these tribes were caught in the colonial nexus of land reform, the need for cheap labour, and the rhetoric of social reform.
Although the Criminal Tribes Acts were repealed across India in 1952, these communities continue to carry with them the stigma of criminality. DNT-NT communities must have looked forward to an independent India that afforded them protection under the fundamental rights section of the Indian Constitution.
However, the promises of Articles 14 (equality before the law), Article 15 (prohibition of discrimination), and Article 21 (protection of life and personal liberty) have yet to extend their full reach over DNT-NTs. Further, following the repeal of the Criminal Tribes Acts by newly independent India, a series of 'Habitual Offenders' Acts was passed by State governments across India which mirrored the Criminal Tribes Acts in significant ways. Although not
listing certain groups as being inherently criminal, the Habitual Offenders Acts use many of the same registration and notification procedures as outlined in the Criminal Tribes Acts, and have been used routinely against members of DNT-NTs.
The use of the Habitual Offenders Acts against DNT-NTs goes against the protections provided both in the Code of Criminal Procedure as well as the Indian Constitution. The Code of Criminal Procedure includes a number of safeguards that are intended to protect the rights of the accused under investigation for a crime. In section 41 of the Code, an arrest may be made when there is reasonable suspicion. However, the concept of 'reasonable' can in no
credible way be argued to cover mere membership of a particular community. Suspicion
must reside in the certainty that is attached to the actions of an individual, not based on tribal name or affiliation. Further, the treatment of DNT-NTs at the hands of the police and government authorities is in contravention of standard procedures of justice that dictate that an accused must be presumed innocent before conviction, and that guilt must be established beyond a reasonable doubt.
The contrast of such provisions of the Code with an excerpt from the Habitual Offenders Act (Andhra Pradesh) is striking.
(1) If in the opinion of the government it is necessary or expedient in the interests of the general public so to do, the Government may by order direct that any registered offender shall be restricted in his movements to such areas and for such period not exceeding three years as may be specified in the order. 
(2) Before making such order, the Government shall take into consideration the following matters, namely. (b) whether the registered offender follows any lawful occupation and whether such occupation is conductive [sic] to honest and settled way of life and is not merely a pretence for the purpose of facilitating commission of offences. (emphasis added)
This provision grants broad administrative power based on mere interpretation. When the basis of such provisions relies on the interpretation of administrative bodies that have a history of persecuting certain groups, and when the context of such interpretation takes place within a society at large, where widespread discriminatory attitudes toward the DNT-NT communities exist, occupations and practices of DNT-NTs will continue to be seen as mere covers for crime. Under this provision, true and lawful employment can be construed as being a ruse for criminality, especially when DNT-NT communities are the immediate suspects in so many instances of crime. This vicious cycle is further compounded when media reports of certain cases of crime accuse DNT-NTs as "criminal tribes" by name, and even describe their various occupations, which they supposedly use for cover. All of this leads to the patterns of continued
abuse and discrimination of DNT-NTs.
Socio-economically, DNT-NTs enjoy living standards far below that of other Indians, and because of the discrimination and stigma of criminality they face, they are at a severe disadvantage when it comes to finding employment.
While various welfare schemes have been established in certain states, their limited purview, weak mandate, and inconsistent implementation render them ineffective in ameliorating the plight of DNT-NTs.
Although the problems of DNT-NTs have been recognised by the National Human Rights Commission (NHRC) through the formation of a sub-group to study the issue, as well as specific recommendations made to State governments, there has yet to be any real and meaningful action on the part of responsible parties.
National legislation exists to deal with atrocities committed against Scheduled Castes (SCs) and Scheduled Tribes (STs), but this has yet to be used in the vast majority of abuse cases perpetrated against these groups. Further, different States have categorised DNT-NTs in different ways, with certain groups falling under the designation of SCs, STs, or Other Backward Classes (OBCs), or having no special designation at all. Therefore, there is a need for a
national response to the issues facing DNT-NTs, with the creation of a separate category of DNT-NT so that the particular and unique issues of discrimination and abuse that these communities face (including the stigma of criminality they continue to carry), can be handled in a substantive manner. 
Provisions of international law provide further protection for India's DNT-NTs. However, while India has signed and ratified certain conventions that would guarantee the rights of these communities, the reality of their non-implementation nullifies the protections offered by them. This disparity between the rhetoric of rights so commonly proclaimed by the Indian Government and the lack of access to such rights by communities is both deceptive and disturbing. The international Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), all of which India is a State party to, include numerous protections which as of yet have not reached India's millions of DNT-NTs. 
If the standard of any of these individual provisions is not enough to indicate a clear breach of law, then the totality with which India has ignored, refused to implement, or proved incapable of enforcing all of the above provisions together, in both domestic and international law, is truly
staggering and merits immediate attention. The rule of law is meant not only in the disciplinary sense of punishment, but much more broadly in the sense of creating an environment conducive to the full realisation of the whole range of rights to all citizens. This full realisation of rights by all citizens is an ideal that should be striven for at all times.
While the burden of action and redress lies with the Central and state authorities, the systemic nature of the problem also requires civil society to engage in an honest and open dialogue, to examine the ways in which discrimination continues to exist, and to ensure that members of DNT-NTs are able to live freely, without the burden of discrimination and abuse, and with adequate institutional safeguards to protect their life and liberty. 
- Human Rights Features

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