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Denotified Tribes and Challenges of Age Old Traditions: In conversation with Dr. Deepshikha Agarwal

Last month, Dr. Deepa Kansra and Dr. Mallika Ramachandran, editors at Rights Compass had a conversation with Dr. Deepshikha Aggarwal, Professor, University School of Law and Legal Studies on issues concerning denotified tribes (DNTs) and human rights.

Below is Part I of the conversation covering the relevance of human rights to the issue of DNTs, the contemporary relevance of the subject, definitional concerns and their socioeconomic status.

Q.1. Human rights are a subject of interest to persons from varied fields. Is there a particular definition or theoretical stance which appeals most to you?

Rights are inalienable entitlements that allow people to live a dignified life. When the perspectives of rights were initially taken up, it was to deal with political and civil issues—like the right to vote, the right to speech, the right to form associations, etc. In contemporary times, the focus of peoples’ concerns has grown wider and now involves issues like acceptance of gender queer identities and different sexual orientations. Thus, the evolving nature of society brings in new issues of rights, which can be best understood using sociological or anthropological perspectives. The wider and multidisciplinary approach helps in understanding human rights from society’s perspective, and imparts a more pragmatic position.

Tackling human rights issues from the legal and political dimension is one thing, but discussing competing rights is a completely different ball game. Humans are social animals; they survive through their social instincts (which are learnt, not biologically inherited) and when they interact with each other, their claims or demands vis-à-vis fellow beings arise. These claims/demands/rights can be analyzed from a holistic perspective only by taking a sociological approach.

According to Madsen and Verschragen (2013), human rights ought to be linked with the society’s or state’s capacity to guarantee the enjoyment of those rights. These rights must be seen as embedded in the daily practices of various social, political and economic institutions (such as families, schools and universities, government and courts). The early sociologists like Emile Durkheim, Karl Marx and Max Weber did not recognize universal values that were independent of society—for them the discussion on human rights was an abstract idea, around which philosophical discussions focused. It was only the later generations of sociologists who recognized the increasing influence of human rights and focused upon the preconditions that facilitated their recognition, and disseminated these rights (Bryan S. Turner, 1993; Mark Frezzo, 2015).

Clements talks about ‘rights culture’ as the way through which a community or a group interprets social activities and institutions and applies rights in practice. It looks at rights as the product of community and as a dynamic aspect of that community that itself keeps evolving—hence as a society/community evolves, human rights also evolve. The state enforces certain rights through law, but newer rights claims arise from the community or through movements that may be beyond the scope of the rights of the state. The state has to respond to these claims—this holds true for the collective rights of aboriginal or indigenous people, which have been ignored by the state for a long time.

Rights are not abstract principles and they are not about politics. There are universal principles of human rights, there is no doubt about that, but each society has its own interpretation and entailing application of these rights. Thus, according to Hannah Arendt (2004), the right to have rights is the most universally applicable human right.

Q.2. Has the language of human rights led to the de-internalization of age-old harmful practices and perspectives?

UNICEF defines human rights as standards that recognize and protect the dignity of all human beings. They make it obligatory on the part of the governments of various nations to do something for their citizens (that is desirable for the well-being of all) and prevent them from other things (that will hamper the prevalence of equality in society). The various human rights that are defined in human rights instruments are interdependent and interrelated—one right cannot be accomplished without realizing the other.

Human rights have evolved over time and have been defined in clear terms in various international covenants and international and national laws. To a great extent they have made a huge difference in the world, especially in favor of people who have been discriminated against for a long time, thereby helping in ending social inequalities. However, a lot still needs to be achieved and a lot still needs to be changed.

Age-old practices and traditions are deep rooted in the cultural fabric of communities, and they are hard to change. The concerned communities give the context of cultural relativism to these practices and often guard them against change. For example, the Sati Pratha in India was seen as the veneration of widows who self-immolated and were escalated to the position of the immortal devi. When the British government introduced laws to abolish this cultural practice, it met with a lot of resistance from Indian communities. Similarly, the cultural practices promoting genital mutilation are also secretly guarded by the communities engaging in this practice.

Even though the concerned governments enforce laws and lay down policies to protect the human rights of their citizens, the general lack of awareness about these laws at the grassroots level, and apathy among the masses, forces them to accept status quo. This leads to weak implementation of the laws meant to protect human rights. De-internalization of age-old practices thus remains poor in communities that are tied to their socio-cultural traditions.

Sometimes it is the State that does not want to break its old mould or is slow in implementing laws to protect the human rights of its citizens. The case of the denotified tribes is the best example to illustrate such a situation where the state has shown a slow response to protecting the interests of the most marginalized and discriminated section of the society. There are no specific constitutional provisions to protect their rights and till date there is no permanent commission at the national level to guard them against the age-old practices that have haunted them since the British period of administration in India. The decriminalizing efforts of the state to free them from the civilizing mission of the British have fallen flat, and there is no change in the status of the communities that were branded as criminals in the pre-independence period. The tag of criminal tribes attached to the DNTs continues to haunt them even today.

Q.3. The topic concerning denotified tribes is very close to your heart. How should one understand the contemporary and historic importance of the topic?

The denotified tribes of contemporary India are the nomadic (NTs) and semi-nomadic tribes (SNTs) that appeared to be a threat to the British government due to their ambulatory practices. According to the Renke Commission (National Commission for Denotified Tribes, Nomadic and Semi-Nomadic Tribes, 2008), the term denotified tribes (DNT) stands for those communities which were notified under several versions of the Criminal Tribes Act, enforced during the British Rule between 1871 and 1947 throughout Indian territory and were denotified by the repeal of these Acts after India’s independence. These communities are endogamous, with strict commensality rules also applying to them. Though they are not considered untouchables, they fall in the lowest rung of the social hierarchy and live in the most deplorable conditions. They are mainly patriarchal, with the eldest males occupying most important positions in society, and very often passing very brutal sanctions against their women. The caste councils play a very important role among the denotified tribes, and their decisions are regarded to be final.

The dehumanizing approach of the sedentary communities towards the nomadic communities was not new to British India. The trend across the world has been to regard nomadic tribes as being less developed and organized. This gave a reason to the Europeans to colonize the territory occupied by the indigenous communities across the world. They also branded the nomadic communities or gypsies as criminal, and the state always looked at them with suspicion.

The belief in racial superiority of the white race gave the European people reason to justify their colonizing attempts in third world countries. Their Eurocentric ideology of white supremacy and their indulgence in the imperial missions of ‘civilizing’ the world relied on tactics of de-humanizing the natives and declaring (and treating) them as barbaric. In their colonizing spree, they did not hesitate in deliberately destroying and reinterpreting their past from their own angle.

In a similar vein, India’s history was re-written by the British—India was regarded as a country without history, and Indians as being incapable of writing history. The British rulers tried to understand Indian society amidst its vast constellation of languages, local practices and belief systems—which were too intriguing and perplexing for the British administrators. The caste-based hierarchy of Indian society was the greatest obstruction in the evangelizing mission of the imperial forces. The tribal people also dotted the Indian landscape with their bizarre and intriguing culture (as it appeared to the British administrators).

Bewildered by the ethnic diversity in the country, British ethnographers and administrators initiated several studies for purely administrative purposes. The missionaries also had the proselytizing process on their agenda. The Indian Gazetteers, Surveys, Census Reports and Manuals overflowed with observations on the ‘peculiar’ practices of the indigenous people. Most of them were recorded by missionaries, colonial administrators, ethnographers and historians, and carried the British bias. Anthropological studies also added to this knowledge system, which was objectified into information laced with value and interpretation meaningful for the British rulers. In this process of information recording, the concepts of caste, class and tribe were jumbled up and the terms were used interchangeably by the British rulers and ethnographers to suit their needs—the tribes were confused with caste to declare inheritability of criminal tendencies of certain tribes—just as caste indicated hereditary occupations for each caste, the so-called criminal tribes were also regarded as professing occupations accorded to them through the generations.

Across the world, there were theories of biological determinism (Lombroso and others of his like), according to which criminality was passed to individuals through genetic coding. This idea of biological inheritance of criminal tendencies would have meant that the criminal tribes could not be corrected and rehabilitated—hence the British administrators applied their theory of social inheritance of their ‘criminal profession’, mixing tribes with caste. A major reason for this project was to put the vagrant and ‘lazy’ nomadic population under vigil, and put their labour to productive use, that increased the revenue of the British government. The British changed the definition of work—the activities in which the nomadic population indulged—such as selling salt, fire walking, street dancing etc., did not come under the definition of work as per the British understanding.

The British administration dealt with crimes like thugee and dacoity, which were regarded as serious threats to the law and order situation in India. They came up with the Thuggee and Dacoity department to deal with these gang operated crimes. The Thuggee Act XXX of 1836 was laid down and there were other legislations as well, that followed. The criminal acts were also associated with certain other tribal communities—the anthropological and ethnographic studies conducted on the Indian tribes marked them as having exotic rituals and different psyches and bodies. These different attributes were treated as the hallmark of criminal personalities. The nomadic and semi-nomadic communities were specifically picked as criminal groups. They very well fitted into the definition of criminals—they were devoid of any property, indulged in purposeless activities, were poor and scantily clothed, and did not have any system of socio-political organization.

There was a spate of legislation to repress and marginalize the tribal population of India in the second half of the nineteenth century, which adversely harmed the interests of the Indian indigenous population. The Forest Laws of 1878 and Akbari Laws of 1890 related to private property were representative of some of these most repressive laws of the British government. Through these laws, the forest land and resources on which the tribals survived went under government control. The tribals who played the most important role in protecting and conserving the forest and its resources, were suddenly declared as trespassers.

The enactment of the Criminal Tribes Act of 1871 and its various versions in the years that followed arose from policies of political control rather than social concern for the escalating crime rate in India at that point of time (Meena Radhakrishna, 2001). The Act was born out of the dire need of the Imperial government to formulate an effective strategy of political surveillance, colonial subjugation and sedentarizsation of the nomadic tribes. The Act was combined with a few other mechanisms like the Census and fingerprinting technology to facilitate the identification of vagrant groups from which the colonial power sensed threat. The criminal tribes were assembled under the Criminal Tribe settlements, where they were put to vigorous work schedules and their labour was harnessed for activities productive for the government. The CTA was revised from time to time to encompass more provinces and nomadic communities under its claws. The CTs were put to ‘life imprisonment’ and there was purposeful attack on their traditional practices and institutions.

Q.4. Has the expression wandering community been adequately defined in law and human rights?

Across the world, very little attention has been paid to the nomadic people, in spite of the fact that they are facing many challenges due to the nation–state system based on settlement.

The ambulatory lifestyle that is the distinguishing feature of these communities has always challenged the idea of fixed state borders, and hence it has been treated as incompatible and non-acceptable to the settled communities and state sovereignty. There is also a general belief that these communities lack the Western style of a centralized and bureaucratic set up that is regarded as the ideal pattern of organization. This is not true, though—the nomadic communities tend to have more a fluid organization due to their ambulatory practices. Though they do not have a fixed territory in a strict sense, they have a strong sense of possession and dominion over the territory which they traverse.

There is no formal definition of nomadic or wandering people and they do not strictly fit into the category of indigenous or minority communities or immigrants, and as such they have fallen between the cracks. Their understanding is thus obscured under the human rights laws designed to protect indigenous people or minorities. Heather Alexander defines nomadic people as the people pursuing a mobile lifestyle following scarce/changeable resources. As they wander from place to place looking for these resources for their survival, they may cross state/national boundaries, which makes it difficult (sometimes impossible) for them to get their registration or indigenous identity papers. This denies them legal identity and access to rights that are normally available to all people.

Modern nationality law in post-colonial states has imparted a stateless status to them, using it as a ground for their deportation and exclusion from states. Even under the International Law, very little attention has been paid to the wandering or nomadic communities. Since their legal identity is shrouded in doubt, their rights are not protected under the UN Declaration on the Rights of Indigenous People or by the International Labour Organization.

Although the UDHR regards the right to nationality as a human right, the Human Rights system is still bound-up with the nation–state system, because of which the nomadic people get excluded and are denied nationality. Thus, they are prevented from accessing their human rights. In some places, the nomadic people have managed to get legal identity, but such communities have been forced into sedantarization and assimilation. This hinders them in enjoying their cultural right to practice their nomadic lifestyle, which challenges their identity. Further, their land rights are recognized under the International Convention on the Elimination of Racial Discrimination. The Committee on the Elimination of Racial Discrimination has taken a proactive approach towards the rights of nomadic people to their land.

Certain changes were seen towards their treatment in International Law around the beginning of the 1970s, when more attention was paid to the interests and issues faced by the nomadic people and they were treated as juridical entities entitled to collective rights. It was added that the ambulatory practices of these people do not preclude them from exercising their rights of self-determination.

Q.5. In the case of denotified tribes, would social exclusion, stereotyping and inadequate representation make it a case of grave human rights violation?

India in the late-nineteenth century saw a turbulent period for the British policy-makers, with issues of unemployment, strikes, economic depression, and political radicalism growing everywhere. The British government passed many pieces of legislation to curb crime arising from such a situation. The Criminal Tribes Act of 1871 was the most significant of all this legislation—it defined crime, criminals and criminality from a new dimension. This led to completely new identity formation for certain groups and communities in India. These communities were believed to be addicted to the systematic commission of non-bailable offences. The Act was first applied in the Northwest Frontier Province, Oudh and Punjab, and later in 1911 it was implemented across India.

The ‘Criminal Tribes’ was a colonial stereotype created by the administration to justify punitive ‘disciplining and policing’ of sections that were unwilling to accept the new moral order of the British government (Sanjay Nigam). These people were regarded as criminals since time immemorial, and it was believed that their criminal tendencies were passed through social heredity. It was also suggested by anthropological studies that they had certain physical characteristics that defined them as a separate ethnic category. Thus, their social practice and physical attributes became the basis of their criminality. They were regarded as beyond reform and the only way to discipline them was to keep them under strict surveillance—thus the British government kept the criminal tribes in Criminal Tribe Settlements, many of them being managed by the Salvation Army. Here they were kept like life-time prisoners and were put to productive work in agriculture and plantations.

The DNTs continue to suffer from an identity crisis in independent India as well, which is the biggest difficulty they are facing today. They do not have the documents that serve as identity proof. Due to the lack of documents such as birth certificates, voter ids, caste certificates, BPL cards or ration cards, etc., they are not able to enjoy the benefits of many government welfare programmes run by the Centre or States in which they reside. For instance, the widows in the community are not able to get widow pension or assistance given to widows by the government. According to the Interim Report of the Idate Commission (2016–2017), 11% of the grievances received by the Commission from the DNTs and NTs were relating to the lack of various identity documents.

The Constitution does not have any separate schedule for the DNTs. So, the state governments try to fit them arbitrarily into the SC, ST or OBC category—the same community may be put in the SC, ST or OBC list in different states, or in different districts within the same state. Perhaps when the Constitution was being framed and the schedules were being prepared, the denotified tribes were still regarded as criminal tribes. Hence, the issue of having them as a separate category never arose. Technically speaking, there must be a separate category of DNTs under the Constitution, given the long history of state discrimination against them and their criminalization, and the political surveillance and stigma they continue to face.

There are critical issues related to data compilation of the DNTs and NTs—there being no reliable list of the DNTs and NTs so far. The only reference point is the 1931 census, which provided some data. The Aiyyangar Committee reported 127 DNTs, though other research has indicated 198 DNTs. According to the report of the Idate Commission, there was information available about the presence of DNTs, NTs and SNTs from 26 states and union territories. However, it gets difficult to verify this information due to related discrepancies faced by the Commission such as the same tribe being addressed by different names, and synonyms, and sub-castes being treated as separate castes in some states. There are also cases where enlisted DNTs, NTs, or SNTs have not been appropriately categorized, and continue to live in abysmal conditions (one instance is of 46 such communities from Gujarat).

The level of literacy remains another concern for DNTs and NTs. They face educational exclusion because of the conditions of acute poverty in which they live. The benefits of Sarva Shiksha Abhiyan have not reached them due to lack of awareness among these communities. As they live in far-flung areas and are always on the move, it is very difficult for the DNT and NT children to get education from regular schools in settled society. Many children from these communities are thus not enrolled in the schools and they may continue to assist their families in getting a square meal to survive. Even when they are enrolled, the drop out ratio for these communities in schools remains very high. Those who manage to join school face extreme discrimination from the teachers and their peers. Education thus becomes a mirage for them and they remain illiterate, or their education is restricted to the 10th standard or so (According to the National Commission for DNT, NT and SNT Report of 2008). The educational exclusion translates into economic exclusion—the options for finding a decent livelihood become closed to them.

Even though these communities by and large indulge in ambulatory practices in pursuit of their traditional sources of livelihood, many of them have settled down today. The sedentarizsed population of the DNTs and NTs live under precarious conditions. They live in tents/jhuggis and in slums, mainly on the outskirts of main settlements, where basic amenities and infrastructure such as sanitation, clean drinking water, drainage, and electricity are not available. The lack of proper housing facilities has been a major issue in the settled colonies of these communities. Many times they do not know the status of their residential location—they lack title deeds for their homesteads, and thus lack rights over their place of stay.

The health conditions of the DNTs and NTs remain very poor, with the problem of malnutrition looming large. Previous studies by Commissions appointed to evaluate the health status of these communities have pointed to the issue of non-accessibility of medical services. The main reason for this again is their ambulatory practices and the distance of health centers from their habitations. Health is also directly linked to the availability of an adequate supply of water and access to clean drinking water. Lack of proper toilet facilities in the areas where they live adds further to their health woes.

The DNTs also face problems in terms of livelihood opportunities. Traditionally these communities have been indulging in long distance trading practices and in art performances and street entertainment. Their living conditions remain quite perplexing since they have been weaned off from their traditional sources of livelihood due to mechanization processes, advances in transportation and the rise of virtual entertainment. As they have been not able to keep pace with these changes, they have been forced into menial jobs. Laws that have been laid down to protect forests, natural resources and animals have prevented these communities from continuing their traditional practices. Thus, the DNTs have been pushed to a situation of utter destitution.

Various laws and new development policies have largely excluded them, or have further marginalized them. Many hunting and gathering communities lost their livelihood due to the enactment of the Wild Life Protection Act (1972). The Prevention of Cruelty to Animals Act, 1960 affected the DNTs, many of whom earn their livelihood through animal performing acts. The older Forest Laws had marginalized all the tribal communities who depended on the collection of minor forest products. The Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act of 2006 recognized the rights of forest dwelling tribes and provided great respite to the tribes, but since the legal status of DNTs remains obscure, these rights are not available to them. Thus, many of the laws and policies have adversely affected the livelihood opportunities of the DNTs and many of their traditional occupations.

This occupational displacement has not been addressed by providing them dignified means of livelihood. All this has led to a high incidence of unemployment amongst these communities. Many of these people have thus been forced into prostitution and begging, and some of them may also resort to criminal/illegal practices, which makes them more vulnerable to police action. Attempts to harness resources for their skill development have not been made by the government. Even where these attempts have been made, they have not delivered the desired results.

Specific policies and plans for the socio-economic inclusion of the DNTs, NTs, and SNTs are lacking. Even when plans are there, they have execution problems. For example, the Maharashtra government established the Directorate of the NT–DNT and Social Justice and Special Cooperative Division. In 1984, the Maharashtra government established the Vasantrao Naik Vimukta Jati and Nomadic Tribe Development Cooperation (VNVJNTDC) for the upliftment of DNTs and NTs and floated certain schemes of development. But again, due to lack of identity documents, the people from these communities were not able to get benefits. Moreover, the budget allocated for the VNVJNTDC schemes was low in comparison to the approximate population of these communities. Thus, in general the DNTs are excluded from various employment generating schemes and development programmes.

Political exclusion of the DNTs can be seen in the light of the denial of their citizenship rights, which is again related to their ambulatory practices. Several Commissions have been appointed to analyse their socio-economic status since independence—the Criminal Tribe Inquiry Committee (1947), the Ayyangar Committee (1949), the Kalekar Committee (1953), the Lokur Committee (1965), the Mandal Commission (1980), and more specifically, the National Commission on DNTs, NTs and SNTs (Renke Commission 2003 and Idate Commission 2015). There were Commissions at the state level—worth mentioning among them is the R. N. Bapate Commission in Maharashtra. However, nothing concrete has emerged out of these Committees and Commissions, since their recommendations were never implemented.

The DNTs are also excluded from policy-level decisions, discussions and state level budget allocations. As per the Directive Principles of State Policy, the educational and economic interests of the lower sections of society must be protected. But due to lack of political representation of the DNTs in the political corridors of power, these rights are not secured. The DNTs get very negligible proportions for their welfare in the Five-Year Plan budgets.

As a result of all the forms of social, educational and political exclusion, the human rights of the DNTs, such as the right to life with dignity, right to education, right to livelihood, cultural rights etc. are denied to them.

End of Part I.

For 6-12 of Part II of the Conversation, see here.

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