Vimukta communities and Police

Welcome to the DAKSH Podcast. I’m Anindita. I work with DAKSH which is a Bangalore based nonprofit working on judicial reforms and access to justice. The Criminal Tribes Act 1871 was a prejudiced and cruel piece of colonial legislation that arbitrarily labeled several communities across India, criminals by birth and subjected them to repeated imprisonment and surveillance. While many of them are nomadic, or semi-nomadic communities, there is no common feature that they share apart from the historical injustice they have suffered. The Act and notifications under it have since been repealed. These communities are now denotified and are termed together as denotified tribes. In this episode of the DAKSH podcast, we discuss denotified tribes of Vimukta communities as they refer to themselves and what they show us about the policing culture in India. Though the repeal of the draconian colonial legislation is an achievement of independent India, discretionary powers of the police coupled with social stigmas of the judiciary continue to haunt these communities, many of whom are still subject to oppression, constant surveillance and imprisonment, sometimes without even being convicted by a court of law. I talked to Nikita Sonavane, a co-founder of the Criminal Justice and Police Accountability Project in Madhya Pradesh, about her work with these communities. We discussed the origin of the peculiar idea that some people can be labeled criminals by birth, and how this prejudice lives on in the India of today. More importantly, Nikita explains how the injustice meted out to the Vimukta communities is a mere symptom of the deeper malaise in our society to seek institutional violence by the police as a solution to societal problems.

Hi, Nikita, welcome to the DAKSH podcast. It’s an absolute pleasure to have you with us here today.

Nikita: Hi, thank you so much for having me.

Anindita: So let’s get our listeners to get to know your work a little better. You founded the Criminal Justice and Police Accountability Project in Bhopal. Can you help us understand what your organization does?

Nikita: So I co-founded what is called the Criminal Justice and Police Accountability Project. And we are a research and litigation based intervention, where we’re looking at the criminalization of certain communities, several marginalized communities, particularly those that are known as Vimukta communities, which is sort of like this broad all encompassing term for several nomadic and semi-nomadic tribes that were criminalized or considered to be criminals by birth. So we are working on looking at how is it that the criminalization of these communities continues? And what is the kind of role that the institution of policing has to play in perpetuating and cementing this kind of criminalization of several communities? And our work is entirely research and data driven? We look at like police data under various laws to see how is it that police discretion is being used to the detriment of marginalized communities. And you know, this data also propels our litigation work. So we are a group of lawyers who are based out of Bhopal. We provide, of course, legal representation to members of this community, but like the data is also utilized, you know, for strategic litigation purposes, to draw attention to, you know, the criminalization of these communities, by the criminal justice system as a whole, but driven by the police as an institution.

Anindita: So what has this data showed you? What do you find to be problematic in the policing culture that we have today?

Nikita: So we looked at, for instance, you know, during the pandemic, the moment that the pandemic was announced, a bunch of criminal legal provisions were invoked, whether it was section 144, or whether it was the penal provisions under the Epidemic Diseases Act, or the Disaster Management Act, so which obviously meant the first responders to the pandemic were the police, right? Because they were deployed in order to enforce the lockdown. So for us, it was important to one, see what policing during the pandemic looked like. So what we did was we looked at. Since we’re based out of Madhya Pradesh this research was carried out in Madhya Pradesh. So, we looked at, like the arrest records of the Madhya Pradesh Police and we looked at FIRs from several districts of Madhya Pradesh. And we found that a lot of people who were arrested during the pandemic were arrested for one, what in legal terms are considered to be petty offenses, right? So those punishable by less than seven years. One is that a significant proportion of the arrests during the pandemic period were for these minor non-bailable offenses. In several instances, they were also bailable. And the other thing that we looked at is to look at who are these people, right, that were arrested and incarcerated during this period? And it included people that belong to SC, ST, OBC, Vimukta and Muslim communities. And along with that, like if you look at like the sort of occupational backgrounds of these people, right, so a lot of them were daily wage laborers, several of them also essential service providers, you know, like milkmen, vegetable vendors. So people who were entitled to even being out on the streets during this period, and also like pedestrians, right, who were found not wearing a mask. So this sort of research. I mean, what it obviously meant is that like the prison population during the pandemic then increased. So there was a lot of talk about saying, oh, you know, prisons need to be decongested. But in Madhya Pradesh, actually, the prison population increased during the pandemic, by a significant 25 to 30%. So what of course, for us is that it revealed two things. One is that what has been the response to what was an unprecedented public health crisis. Is that like an unprecedented public health crisis had turned into a law and order issue overnight, right. That was one and the other was that who are the people that like bore the burden of this? So it was people from, you know, Dalit-Bahujan Adivasi Vimukta communities, it was people belonging to working class communities that ultimately like shouldered the burden of keeping the pandemic in order and maintaining public order during this time, right. So for us what was important, like what this raises questions is about, like the way that police discretion operates. I mean, there were a lot of people belonging to other status of societies, you know, the upper caste, upper class stratas of societies who had violated the lock down, people that had parties, you know, so many international travelers that were flouting quarantine norms, but you see that police discretion is sort of operating in this really micro sort of direction, where only people from certain communities are getting targeted, right.

Anindita: And were sent to jail.

Nikita: And were sent to jail, which obviously meant that they were exposed to the virus even further. Actually, we had, we had a client who was a 21 year old, who was also suffering from tuberculosis, who was incarcerated for four months, during the first phase of the lockdown for an offense that is punishable by a maximum of five years for a repeat offender. And he wasn’t even a repeat offender. He was a first time offender, this is under the Excise Act. So I mean, you had people like that who were incarcerated during this period. And then of course, there are access to bail questions, etc. that emerged, which were obviously all amplified, given that courts were also functioning at a limited capacity, right. So one is, of course, the question of police discretion and how this over representation of certain communities in the criminal justice system is happening. Secondly, and more importantly, for us also is the question of this sort of penal response to a variety of problems, which is that a public health crisis is being responded to by an institution that has absolutely no public health or like social service function as part of its job description, right. It’s a law and order agency. It’s an investigating agency, but now they’re made like first responders to a public health crisis. So there is also that sort of problem-solution mismatch and what it has also meant that the powers of the institution have also amplified because now that there is not only like law and order investigating sort of agencies, but also like responding to a variety of situations, which means like, their powers are only amplified I mean. And, in the absence of any checks and balances, it just means that there is room for that power to be abused even more. And very, very fundamentally, like, what it’s also raising questions about what I’ve been saying is this sort of law and order function, we keep saying, okay, you know, there needs to be law and order. So therefore, there is like this imagery of this, you know, lathi-wielding police officer that so many people have also invested into, say, “ki kuch logo ko toh lathi padni chahiye, hai na?” or that you need more policing powers, and you need a stronger institution in order to respond to crime control. Now, what I was telling you earlier, is that, you know, in like popular imagination, the police has been there to control like heinous crimes, right. So there, it’s instances of sexual violence, whether it’s like murder, you know, all of your heinous offenses. But in reality, if you look at police data, and if you see like, the way in which everyday wheels of policing are churning the direction in which policing is functioning on a daily basis, you actually see, you know, that it’s for all of these minor offenses that don’t even like in the eyes of the law, also, for which arrest is not mandatory, like they don’t even mandate arrest. Under the Public Gambling Act, for instance, you know, two people playing cards on the road, are arrested by the police saying they’re engaging in gambling. You know, so things like..

 Anindita: And people who are often gambling on the street are from a certain strata of society.

Nikita: Are from a certain strata of society, exactly. That you are criminalizing certain ways of being, and certain kinds of like people who are accessing certain spaces. And that’s one problem of it. But the other problem also is that what are people going to the prison for? And what is like, quote unquote, taxpayers money being utilized for, like to curb is what kind of menace? So I think these are the kinds of questions that we are also asking to see is, you know, what is this institution been built for? And what is the function that it’s serving? And at whose expense is this happening?

Anindita: Right, um, that’s a really good example, to look at it from the point of view of the pandemic. But to zoom out and see how this is a problem at all times, let’s just take a few steps back, you said that, you know, your work involves the Vimukta communities, or denotified tribes. Over the course of this episode, we will delve into that in more detail. But first, can you give us a historical background of the denotified tribes and how they came to be?

Nikita: Yeah, so these are several communities, like I said, with varying history. Some are nomadic tribes, semi-nomadic tribes, even like some communities that have some settled tribes as well, basically, a wide range of communities that were all considered to be criminals by birth, under this law that was called as the Criminal Tribes Act of 1871 that was formulated by the British government. And according to this law, they said, of course, that these are people who are all born criminals. But criminality is also hereditary, right? So one generation to another, this criminality is passed on. 

Anindita: This is the idea behind the Act. 

Nikita: This is the idea behind the act, and therefore to be able to like control people who are criminals, we also need to put them in settlements. So there were all of these settlements, that all of these communities were put into. And it meant all of their data, like fingerprints, and everything was taken. If they had to take permission to move out of that settlement, they would have to either take permission from the village headman. And then of course, the institution of police sort of came to be to control these people, right. So they would have to take permission from the police, there would be extensive surveillance, on their movement restrictions on their movement, and of course, the kind of treatment that was meted out to people in the settlements, you know, in terms of hard labor and things like that. Like this is what the cost of that criminalization meant for scores of these communities, right. And this law that was passed in 1871, was only repealed five years after the rest of the country became independent in 1947. It was only repealed in the year 1952. And then, you know, that sort of decriminalization of these communities happened, and that is when they became denotified because a bunch of these communities under the law had been notified as criminals by birth or hereditary criminals, which is when 31st of August 1952 was celebrated as Vimukta Diwas, which was basically like Liberation Day.

Anindita: That’s why they’re called Vimukta communities. 

Nikita: Yeah, which is where there is that assertion of, self assertion of being referred to as Vimuktas. So that is like the history of these communities. And there is a lot of legacy of the Criminal Tribes Act. One is, of course, I want to delve into, like how certain communities came to be identified as criminals, right? Like how did the British even make that sort of assessment, to handpick several communities to say these are criminals by birth?

Anindita: Yeah, because I don’t think the British had it for their own people or similar legislations, at least not so directly to say that criminals are hereditary, I mean, that they’re born into crime, right.

Nikita: I mean, in India, that sort of rationale of who we are determining criminals by birth is also derived from the caste system. Because you know, in the caste system, there is occupation that is assigned by birth to many communities. Now, these are all communities who do not ascribe to the caste system in which I mean that not only do they not fall in like the four varnas of Brahmin, Kshatriyas, Vaishya, Shudra. But also like as a way of functioning, these are communities that subscribe more to the notion of clans than cast, you know. 

Anindita: Would I be correct in saying jati type of system?

Nikita: I mean, jati, still, like, like jati would still be caste, right? Like Vernas are divided into like several jatis. But these are people who didn’t subscribe to that system at all. So in so many ways, they fell outside of the caste order. Like if you look at like the occupations that these communities came to be engaged in, right, so variety of occupations. Several of them traditional hunters, performers, like several communities that you will see people making dhols and all for weddings. So those instruments, fortune tellers, you know, people involved in like cleaning and things like that. So basically, there is like an entire informal economy that was thriving because of the occupations that these communities were engaged in, right. So there is also that rationale of saying that, you know, we want to tap into or we want to control them in order to be able to like, exploit that kind of economy. So the Criminal Tribes Act, even though colonial legislation derives its rationale from the caste system, and from like, being rooted within that caste system. And that’s how this sort of assessment was also made of who are going to be criminals by birth. In fact, if you see like, because like I said, there was so much surveillance. So it also meant that there needed to be informants, to keep tabs on people, and then report back to the authorities to “Achha yeh bhaag gaye hai” to keep tabs on people’s movements. So initially, all of these informants that were also hired by the British were hired from belonging to like the so-called elite communities, which is like upper caste communities who they consider to be reliable people. And later on, of course, there has been a progression in terms of hiring from the communities themselves in order to keep a closer tab. But you see that like the criminal tribes Act has been woven around this rationale, then, like I said, you know, when the law was repealed in 1952, what you also see is that the legacy of the lobbying maintained. Because, you know, in the Constituent Assembly, also, there was a lot of back and forth, particularly when universal adult franchise was being discussed, you know, about whether these communities should even be given the right to vote, because, you know, they’re criminals by birth, and they have all of these criminal tendencies. So we don’t know if we want to give these criminals the right to vote. And then there was also a push by, they were an absolute minority, even in the constituent assembly to say that, like DNT should be given a separate category.

Anindita: To clarify, for our listeners, DNT refers to denotified tribes.

Nikita (continuation): like a separate administrative status has Scheduled Castes and Scheduled Tribes, and then there was resistance to that also, and I’m going to say that kind of resistance also playing out in that, like the law took until 1952, to be repealed. And as soon as the law was also repealed, you see that almost instantly being replaced with like habitual offenders provisions. So you see that like, there are states that have passed these habitual offenders laws, or other sort of regions that have habitual offenders provision. So in the CrPC, also, under Section 110, there are separate provisions for how habitual offenders should be treated. So you see that the Criminal Tribes Act being repealed is instantly replaced by the habitual offenders, you know, laws and provisions, which is almost old wine in a new bottle. Because now like the criminalization has continued, but it’s all happening under the rationale of the habitual offenders. Yeah.

Anindita: Okay. We’ll just come back to that in a in a few minutes. But before that do to clear up the confusion, these Vimukta communities, they could be Scheduled Tribes and Scheduled Caste, but many of them are not considered to be Scheduled Castes and Scheduled Tribes. Am I getting this right? Can you clarify how how it works?

Nikita: For identifying Scheduled Castes and Scheduled Tribes, there was this broad sort of classification of saying communities that have a history of untouchability would be classified as scheduled castes, and those that are primitive would be scheduled tribes. Eventually, a lot of the Vimukta communities have been classified across all categories, because of course, later on, then the OBC classification also came along. So what has happened is because there is barring say, maybe in Maharashtra or one or two other states, there is a separate category of Vimuktas. These are communities that are classified across all categories, including the general category.

Anindita: So some of them don’t even get the benefit of SCs, STs or OBCs. 

Nikita: Not at all, nothing. So there are like, there are communities that are even been put into the general category. So what it has done is, of course, that one is, of course, not being put into a reserve category has meant that you cannot access any of the affirmative action policies of the state. But the other thing what it has also done is, it has really like obfuscated the history of their criminalization and their ongoing targeting by the state and by the police.

Anindita: Essentially, they are marginalized communities, but they’re not recognized to be. And maybe things like the SC ST Atrocities Act, which goes deeper more than affirmative action, it actually targets discriminative practices are not applicable.

Nikita: Not applicable to them. Yeah, not applicable to them barring like some communities who might be put in the SC or the ST category. So there is a push from a lot of communities, at least in Madhya Pradesh, to be classified as scheduled tribes, because a lot of them have been misclassified, according to them in the scheduled caste category, like they have nothing in common with communities that are classified as scheduled caste. They have been making that case, but also like the history still is different from a lot of communities that are classified as scheduled tribes is that there is that history of criminalization that exists with these communities. States like Maharashtra have like a VJNT sort of category, which is Vimukta, jatis and nomadic tribes. So they have a separate categorization for these communities. So I think what has happened is the lack of administrative categorization has also meant like this history of criminalization, which is still so relevant, is something that hasn’t acquired any kind of currency in the so-called mainstream discourse also.

Anindita: So going back a bit to the Habitual Offenders Act that you mentioned, that essentially perpetuates the same ideas as the Criminal Tribes Act. So the Habitual Offenders Act doesn’t have a list of communities identified, and so doesn’t explicitly mention anything like a hereditary criminal trait, but mentions habitual offenders as people who have been who has spent a certain amount of time in jail and have been imprisoned for certain types of offenses over a period of time repeatedly. But how do you think that essentially, these are the same group of people who get caught?

Nikita: So there is no like central Habitual Offenders Act? Right, like there are like some states that have and then there are, you know, police regulations, etc.. where there are habitual offenders provisions. Like in Madhya Pradesh, there is no definition also of who is a habitual offender. You know, it’s something that is entirely left to the discretion of the police. Now, the way that policing has also functioned is that there are so many communities particularly like denotified tribes that have, in so many ways been naturalized as objects of policing. And this is an institution that has also emerged during that time. So if you see police trainings in the way that, you know, the police also talk about them, it still said that these are people that are criminals by birth. So if you look at the way in which habitual offenders provisions are implemented, whether you know, who are the people that are required to submit these bonds for security and peace under the CrPC or are externed out, generally treated as habitual offenders or repeat offenders, or, you know, like these registers also that police stations maintain, right, so there are the history sheeters on there are these ‘gunda files’. So all of these registers also, if you see, you will see that it’s these same communities that are making way to these registers. And if you see like the origin of those registers, also, these are registers that were maintained as part of the Criminal Tribes Act. So there were registers that were required to be maintained of everybody who was put in the segments. So you see that like, you know, it’s the same architecture essentially. So now if like your architecture is removed the same, it’s practically a no brainer. The people who are going to be framed as part of that architecture will be the same people.

Anindita: So historically, under the Criminal Tribes Act, there would be a group of people who kept getting imprisoned. And so on the records, they are the ones who have been repeatedly imprisoned, and then they fall out

Nikita: Actually, they are not imprisoned, to be classified as a, so even in the Criminal Trials Act, this sort of principle of innocent until proven guilty is turned on its head, right? Because guilt is presumed. So even for habitual offenders, so many people who are classified as habitual offenders have never been convicted in any court. There are so many people who are externed as habitual offenders who are required to submit these bonds, but don’t have a single conviction. But it just means that the moment an FIR is registered against you. And in so many cases, that doesn’t even have to be in a FIR. It’s just that the police must believe that you’re a person who’s a habitual offender and a threat. And the police can invoke its powers in order to get you to furnish a bond and be treated as a habitual offender.

Anindita: So that gives rise to a lot of personal biases creeping into. 

Nikita: Yeah, yeah, yeah, so entirely, like a habitual offender classification has nothing to do with conviction of any kind.

Anindita: Right. Even the punishment prescribed, like externment for our listeners is a very peculiar sort of a punishment, which is not throwing somebody in prison or taking a fine from them, but to just remove them from the local jurisdictions to sort of distance them from the mainstream population, right, which is also quite an archaic form of excommunication that is still practiced against them.

Nikita: Yeah, yeah, yeah. For six months, one year, you know, and if you look at the way in which the scope of these orders also ranges that, I could have, say, quote, unquote, been charged with or committed crimes in, say, one district, so for instance, say Bhopal, and by crimes, I mean, there are cases that are registered against me that are pending in court, but I will be externed from neighboring districts as well, which means I cannot enter not just Bhopal, but say like five other districts that are in the vicinity of Bhopal for a period of six months to one year. So which means if my livelihood is in Bhopal, I’m unable to access my family. And it’s just like a violation of you know, the right to movement, right to trade. All of these things are all that are curtailed.

Anindita: So, in your experience, when you’re dealing with Vimukta communities and you interact with the police or the judiciary, do you see any signs of a cultural bias against them?

Nikita: With the judiciary, it’s largely that each time you know you go apply for bail, they will just look at and say “Achha, we want to look into the quote unquote criminal antecedents right. And so, these are all like terms that are become so commonplace within the judicial system that there are no parameters to understand what criminal antecedents are. Does one case mean criminal antecedent, do pending cases mean criminal antecedents? Does acquittal mean criminal antecedents? There is no like uniform understanding on any of this, right? 

Anindita: So what about like looking at their names trying to figure out if they belong to these women?

Nikita: No, no. I want to say this, so like, what happens is, say for instance, now say I belong to the Pardhi community. My last name, like a common last name, is Parman. Okay. But the moment the police registers an FIR against me, my last name will become Pardhi. So they identify, they identify. If you even look at FIRs, and we’ve seen this, you know, we’ve done two studies about the Excise Act in MP and the pandemic policing study that I was telling you about earlier, if you look at addresses of accused persons, sometimes it will just be ‘Pardhi Mohalla’ or ‘Kumar Basti’. So that’s nobody’s address. But you know, how the police is identifying them, right. So you know, how policing is happening, you know, that this FIR has been registered against a person belonging to that Mohalla. There has been people who will argue with us saying, the officer doesn’t know. But the police knows, you know, the police knows who’s living, how their jurisdiction is organized, who is living where, and who belongs to which communities. And there is so much surveillance that is happening that they also know, you know, members of the community tell us that they know who is coming to our houses, they know, you know, when we’re going to the market. So members of the Pardhi community tell us that each time there is a wedding in their family, they’re required to submit an application to the local police station along with the wedding invite in the guest list, because otherwise then the police will come and arrest people, because it just means that if a group of Pardhis are congregating, it means it’s to commit a crime. Yeah, so the police knows, right, and that is the level of surveillance and control All that people are subjected to. So you see all of this understanding then also translate into when bail applications are filed, and then the courts just looking and saying, Oh, these are all habitual offenders, people with criminal antecedents. So you see that, you know, there is no criticality that is involved. So you see that this rationale is being just churned day in and day out into the system. But on the face of it, the argument is “Jo gunah kar rahe hai, hum unko jail bhej rahe hai, hai na”, but who is considered to be a criminal, how did they become a criminal and how are only certain communities of people being considered to be criminals are questions that nobody’s asking.

Anindita: As a final question I just want to go back to your first thought, which is whether policing culture even is the right solution. Do we have a problem-solution mismatch here? Do you think that Vimukta communities are facing the brunt of bias repeatedly and continuing in various forms, do you think policing is the right tool for the problems that they are facing? 

Nikita: I mean policing is the root cause of the problems that they are facing. So it is the police who has perpetuated and responsible for sustaining this historical narrative of criminality, right? If you want to do like a problem identification for the Vimuktas, you will see the police is going to be on the top of that list and like, that sort of criminalisation also had wide ranging implications right? It means the moment someone hears the last name is Pardhi, Kanjar, Kuchbandya, these are all Vimukta communities, nobody will give you a house, you know, nobody will give you employment because the whole narrative is “ki tum log chor ho”. You know, children are discriminated against in school so the policing of these communities and their criminalisation by the police has wide ranging implications that are impeding all aspects of people’s lives. They are unable to exercise their livelihood, they are unable to access their right to education. I mean when we were talking about externment, there is like, their movements are curtailed, so their fundamental rights and liberties have all been curtailed as a result of policing. 

Anindita: So, how do you think one can go forward from here?I mean it’s a clear identification of violation of rights by the State. 

Nikita: One is, there is a question of saying that you know, how is the institution of policing being run, right. Like, there are lots of reports, whether it’s the Law Commission Report or whether it’s the Committee on Criminal Reforms. The Prakash Singh judgment, that has spoken in length, which have said, “achha, we need to have police accountability. We need to have mechanisms that are put in place. I think there needs to be like a serious thinking that needs to happen around that, right? Because it’s not just Vimukta communities. Of course, Vimukta communities are there but this is true of all communities, right, like Dalit communities also, Muslim Communities also, so it’s a wide range of marginalized communities that are at the receiving end of police targeting and police violence in different ways but its commonplace, right? So, to see how we can create checks and balances on the powers of the police, that’s one and the other is also about to think seriously about the question of decriminalization and decriminalization not just from the point of to say that there are communities that have to be decriminalized. There are certain offenses that have to be decriminalized like why are two people playing cards on the street, like why does it merit incarceration. You know, these are questions that we must be asking or like the people who have violated the lockdown, is this solution for that to throw them to prisons. Everything isn’t a criminal problem that needs to have a criminal legal response. So I think, you know, we are a litigious society. We need to also push ourselves to expand our legal imagination as to see how can you address the question of harm beyond making it a criminal issue. You know, beyond dealing with it through the punishment framework alone, because clearly that framework hasn’t worked.

You know, we’ve gone as far as to say the death penalty needs to be introduced, and there have been many people that have been sentenced to death. But we just know that this framework doesn’t work. And what this framework has done is that it has only emboldened the agency, which is the agency of the police, because they are the gatekeepers to who is entering the criminal justice system. So that is a question that we need to ask and we need to like push ourselves to think now.

Anindita: That was my conversation with Nikita Sonavane and you’ve been listening to the DAKSH podcast. This episode was hosted by me, Anindita Pattnaik. If you like the show, don’t forget to follow or subscribe to us wherever you listen to your podcast so that you don’t miss an episode. We would love to hear from you so do share your feedback either by dropping us a review or rating the podcast where podcast apps allow you to. Talk about it on social media. We are using the hashtag dakshpodcast. It really helps get the word out there. Most of all. If you found some useful information that might help a friend or family member, share the episode with them. A special thank you to our production team at ‘Made in India’, our production head and editor, Joshua Thomas, mixing and mastering Karthik Kulkarni and project supervisor Sean Phantom. If you want to find out more about this topic, please have a look at the reading list in the episode description. And to get in touch, visit our website, dakshindia.org. That’s D A K S H india.org. Thank you for listening.