Denotified Tribes and the Road to Comprehensive Reforms: 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 II of the conversation covering the multitude of concerns for DNTs involving laws, governance and social practices. The conversation also includes few pointers for scholars interested in this area of study.
Q.6. Despite the repeal of the Criminal Tribes Act of 1871, it has been found that the denotified tribes still face persecution and disproportionate instance of arrest. Do you feel that the solution lies in proposing specific laws for their protection or something else?
The Criminal Tribes Act was repealed and replaced by the Habitual Offenders Act in 1952 and there are many state versions of the Act. The Act denotified Criminal Tribes but retained many provisions of the Criminal Tribes Act. It is seen as a testament to the colonial perception of the British authorities in India. It imparts the same treatment to the DNTs as rendered by the British administration. Since its inception, it has been liberally used to prosecute the DNTs and NTs and publicly humiliate them. It negates the principles of the criminal justice system and continues to prove innocent people guilty.
The Habitual Offenders Act authorizes the police to investigate a suspect’s criminal tendencies, and to advice whether his/her occupation is conducive to a settled way of life. It has empowered the District Magistrate and District Superintendent of Police to maintain a register of habitual offenders within their district. They may order finger and palm impressions, foot prints and photographs of the registered offenders to be taken. If a habitual offender is found outside his restricted area, he/she may be arrested without a warrant.
The various government departments are not well versed with the socio-economic conditions of the DNTs and violation of the human rights of the DNTs at the hands of the police administration, which has become a general phenomenon in post-independence India. As a matter of fact, the majority of the persons registered under the Habitual Offenders Act belong to the DNT and NT category, making them vulnerable to frequent police atrocities. The police forces have outdated sections in their instructional literature, where the DNTs are depicted as habitual offenders.
According to the annual report of the Idate Commission of December 2017, it received many representations by the heads of DNT organizations regarding police atrocities. These raised grave concerns about the legal status of the DNTs and demanded action against the statements made by retired Police officers, in which the DNTs were referred to as hardcore professionals in committing crimes.
Personal interviews during my empirical study have also revealed that the police department is generally prejudiced and biased against the DNT community and in the instance of any crime, the DNTs are picked up as suspects. They continue to be the default suspects in case of any theft, burglary or dacoity. They are subjected to indiscriminate detention, arrest without warrant, custodial torture and constant surveillance by the state agencies. They are required to sign bonds for good behaviour. Apart from this, their traditional occupations have been criminalized by the State and they are often trapped under the Excise law, Forest Law, cattle slaughter prohibition law, etc.
But all these forms of atrocities against them remain largely undocumented—so these communities remain invisible in society. In a study conducted by the Indian Express (July 2021), it was revealed that there is overwhelming representation of the SC, ST and OBC categories in prisons. Out of this percentage, it would be hard to determine the exact proportion of DNTs.
The unabated public humiliation, beatings and the spate of custodial deaths of the DNTs is an official validation of the criminal tag and reinforcement of criminal identities on them. The custodial deaths of Budhan Sabar in West Bengal (Paschim Banga Kheria Sabar Kalyan Samiti v. State of West Bengal and Ors. / W.P. No. 3715 of 1998 Calcutta High Court Judgement) and Pinya Hari Kale of Maharashtra (Annual Report of NHRC, 1998-1999) are some important instances that illustrate the prejudices held by the police department against the DNTs.
The National Human Rights Commission constituted an Advisory Group on DNTs and NTs to recommend steps that the Commission should take to deal with a petition by the Denotified and Nomadic Tribes Action Group, which highlighted the problems faced by the DNTs. The Advisory group expressed its anguish at the instances of mob-lynching, arson and police atrocities against the members of these communities.
Thus, the political surveillance of the DNTs still continues, and they still live in the dark shadows of the past—they continue to face the stigma of the criminal tag applied to them by the British administrators, and are still vilified as hereditary criminals. It has become their dominant identity, colouring all other identities. They face the stigma of criminality at the hands of the administration in police departments, courts and society.
All these facts lead us to the conclusion that the sufferings of the DNTs occur due to the lack of specific legal provisions to protect their interests. Though many of these communities are included in the SC or ST category, it does not end their woes. It is highly recommended that the government should provide legal protection and extend constitutional safeguards to these communities. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act can be extended to include the DNTs, NTs and SNTs. Further, there is a need to reconsider the inclusion of DNTs under the Habitual Offenders Act, as the DNTs are not habitual offenders—they are just being stigmatized by the authorities and society at large. The provisions of the Act need to made simpler and wider, so as to exclude the DNTs and NTs from the category of habitual offenders. There is a need to create a separate category of DNTs, NTs and SNTs in the Constitution, so that the issue of political exclusion can be addressed. Or, sub-quotas for these communities can be created within the SC, ST and OBC categories. This can help in addressing the issue of their non-representation in higher education, employment and in the political sphere.
Q.7. The stereotyping faced by the denotified tribes can be partly attributed to the lack of awareness of the issue, not only among the general populace, but also among the authorities. Is the Government working sufficiently towards overcoming this?
The issue of continuing stigmatization of the DNTs and NTs in independent India was raised by the UN Committee on the Elimination of Racial Discrimination. In its concluding observations, the Committee raised its concern about their stigmatization under the Habitual Offenders Act. The DNTs need to be destigmatized from the status of criminal tribes or habitual offenders. People are generally unaware about the existence of DNTs and atrocities practiced against them. Probably an objective study on criminality among the DNTs and other communities can be carried out to remove the stigma of criminality from these communities and improve their public image.
Jawahar Lal Nehru regarded the Criminal Tribes Act to be a blot on the law books of free India. Following this line of thought, the work of the government on the DNTs started after independence when the Ayyangar Committee submitted its report (Report of the Criminal Tribes Act Enquiry Committee) in 1949–1950. It made the observation that no other country has an Act equivalent to the Criminal Tribes Act, and that it should be repealed. The Lokur Committee in 1965 effectively shed light on the anomalies of listing of these communities under different categories of SCs and STs. It recommended that these communities have suffered historically and they should be taken out from the SC/ST list and be put in a separate category, with specific schemes to suit their requirements. The Justice Venkatachaliah Commission in 2002 took specific note of the condition of DNTs and NTs and recommended that the Ministry of Social Justice and Empowerment should work towards their educational and economic development, and for their liberation and rehabilitation. In 2006, the Technical Advisory Group (TAG) gave various recommendations. The Renke Commission submitted its report in 2008 where it remarked that these communities are extremely vulnerable. In total it made 78 recommendations. The Idate Commission on DNTs, NTs and SNTs presented its report in 2017.
There are some Central government schemes that have been implemented by the Ministry of Social Justice and Empowerment—the Dr. Ambedkar Pre-Matric and Post-Matric Scholarship for the DNTs, and the Nanaji Deshmukh Scheme of Construction of Hostels for DNT boys and girls. Apart from this, different states have instituted various schemes for the upliftment of these communities.
The National Institution for Transforming India (NITI) Aayog asked its Social Justice and Empowerment Division to work for the empowerment of NT, SNTs and DNTs, whereby it laid down that there should be Central policies and programmes of the Nodal Ministry and Line ministries for their empowerment. It asked the government to conduct periodic monitoring and evaluation of all policies and programmes being implemented for these communities. It stressed upon field-based first-hand information on policy implications and development deficits in their case. It also suggested that priority areas and new strategies be identified for inclusive development of the underprivileged sections of these communities.
However, all these recommendations and schemes so nobly floated for the most marginalized section of our society remain more on paper for various reasons. The authorities dealing with the DNTs are themselves prejudiced and biased against them and perpetuate their criminalization/villainization. The DNTs remain uncounted and unaccounted, so they continue to suffer. As they are not enumerated in the Census, it is difficult to quantify and qualify their needs for the future. Many of them are subsumed under SC/ST/OBC categories (and many are not enlisted anywhere), but the biggest problem is getting the caste certificate. Due to the non-availability of identity papers and lack of awareness about their rights, they are denied a range of entitlements such as PDS, MGNERGA job cards, schooling, pension, health care, etc. Thus, though the government has made various efforts for their upliftment from time to time, their situation remains dismal.
Q.8. Have governance or e-governance initiatives for achieving financial inclusion reached out to the denotified tribes?
Governance has reached those sections of the DNT community which have been included in the SC/ST/OBC list and they have prospered. They are aware about their rights and are able to confront tough situations. They also have identity papers and can avail some schemes and policies that are available for them. There are various NGOs or action groups like the National Alliance Group for DNTs, NTs and SNTs (NAG–DNT), ANANDI, Agrariya Manch (AHM) and PRAXSIS which assist them in getting their due. AHM works for the Agrariya community whose main occupation is salt extraction from rocks. AHM made the community members aware about the latest technology and used it for classroom teaching with the help of the Zero Connect Digital Empowerment Foundation.
But there is still a large chunk of the community which has not taken to a sedentary lifestyle, and they are not able to avail any government benefits. They continue to live a life of destitution and utter despair.
Q.9. Are there any mechanisms to protect nomadic practices and traditions in law?
World over there is a trend of stereotyping nomadic communities as unsettled and undisciplined, and they are regarded as stateless, or without an organized political system, and excelling in war-science. The notion of wanderlust associated with them makes outsiders believe that the these communities traverse geographical terrains aimlessly. They have been subjected to suspicion because of their thrifty lifestyle and unpredictable movements, which makes it difficult for state authorities to monitor them. They have been de-historicized, with their role in various important historical events consciously brushed away.
In the Indian context also, the nomadic and semi-nomadic communities were seen as possessing sub-cultures or counter-cultures that subverted and challenged the larger public. India in general was projected by the British as a country bereft of history, in spite of the fact that India has a vast repository of cultural diversity, including her languages, customs, religiosity and socio-political make-up (Cohn, 1996). The indigenous people, including the DNTs, have contributed to the nation’s struggle for independence—but their contributions have never been recognized.
These communities have a long and rich cultural heritage and centuries of expertise in arts and craft. The handicraft items made by them are very popular in the national as well as international market. The Idate Commission recommended that a separate academy be established for protecting and preserving their Art, Culture, Sports and Indigenous knowledge. The government attempts to revive their traditional practices by engaging these communities in performing arts such as dancing, singing, theatre, playing musical instruments, puppetry etc. under the Ministry of Tourism.
The Government also intends to use the traditional knowledge of the DNTs in forest flora and fauna in the conservation of natural resources and biodiversity. To illustrate, there are DNTs traditionally involved in hunting and living around tiger reserves. The Ministry of Environment and Forests in its Revised Guidelines for the Ongoing Centrally Sponsored Scheme of Project Tiger identified about 19 such DNTs, and the government plans to involve them in the rehabilitation of tigers.
The government thus tends to protect the heritage and traditional practices of the DNTs by involving them in its projects.
Q.10. Lack of data is seen as another major impediment in adequately addressing the issue and problems faced by the denotified tribes ranging from discrimination to social and economic challenges. Will a census, as proposed by some quarters, offer the needed solution?
The first and foremost problem in dealing with development issues of DNTs is the lack of a formal definition of DNTs, NTs and SNTs and a standardized list. This is a major hurdle in planning for inclusive strategies for the development of these communities. It is necessary that various states and UTs have relevant information about the DNT/ NT population in their respective territories, providing a detailed survey about the families of these communities and their concentration. A proper caste-based survey is required, especially in respect of DNT/NT communities—this will help in quantifying their needs and in the implementation of the various mainstream as well as community-specific schemes. Proactive data collection about the demographic profile of these communities will help in getting an accurate picture about their socio-economic conditions, which can provide the basis for appropriate policy initiatives for them.
The Idate commission took up the herculean task of preparing state-wise lists of these communities and their data analysis revealed the presence of about 203 DNTs, out of which 64 were included in the SC list, 5 in the ST list, 65 in the OBC list, and 7 in the VJNT lists; 30 were not included anywhere, and the status of 32 communities was not clear. The Commission suggested that the states constitute small committees to identify all such communities, and their SC/ ST or BC identity should be applied in a uniform way across India. The district-wise list for each state and UT can be based on house to house surveys, as suggested by the Commission. It further suggested that the DNTs coming under SC, ST and OBC categories should be separately identified as SC (DNT), ST (DNT) and OBC (DNT), for the time being, to mark their separate status. Further, there is a need for an official category of DNT in the National Family Health Survey and the National Sample Survey so as to understand their demography and address their differential needs of human development, with appropriate and adequate provisioning of financial resources by the respective states.
Q.11. How in your view, can individual researchers contribute meaningfully to the issues and challenges faced by the denotified tribes?
The DNTs are rightly projected as a community ‘dishonoured by history’. In order to destigmatize them, it is important that we raise awareness about the marginalized status of these communities and remove all the prejudices and biases of the authorities against them. It has been noted that the general public, including elected representatives, administrators, the police and the media lack empathy for them in the absence of a proper understanding of their condition. These communities belong to no one. The media portrays them negatively and presents prejudiced stereotypes, drawing their understanding from the colonial past. Some write ups have been coming recently in magazines and newspapers about their plight, but they are not written with academic acumen. Certain NGOs have come up with good documentaries depicting their downtrodden status.
The government can introduce effective policy measures for these communities only by having an in-depth understanding of the real issues faced by them. Off late, there has been quality research in the academic circle that focusses attention on DNTs and NTs. Such research has provided new outlooks on the unique problems of social stigma faced by the DNTs, to which we have no specific reference in our Constitution. Sociological and anthropological studies undertaken by independent research scholars and by the Anthropological Survey of India (and its state divisions) have provided a holistic analysis of the socio-economic condition of the DNTs. Specific works by Meena Radhakrishna, such as Dishonored by History (2001), Anuja Agarwal’s book on the Bedias, Chaste Wives and Prostitute Sisters (2008), Subir Rana’s Born to Damned (2020) are some important academic works that give us an insight into the lives of the DNTs.
More such original academic research needs to be done. The University Grants Commission (UGC) and the Indian Council for Social Science Research (ICSSR) should fund more research projects for studying the DNT communities. So far, these institutes have not been supporting students/scholars taking up such studies.
Q.12. What are you currently working on?
The DNTs have been pushed to the margins of the society—even though they technically do not fall in the category of untouchables, their condition is far worse than the Dalits due to the history of criminality associated with them. The draconian act (the Criminal Tribes Act) alienated these communities from their traditional sources of income, and made them vulnerable to a range of abuses.Some of the DNTs like Perna, Nats, Bedias, Kanjars and Banchhara have been forced to adopt intergenerational prostitution as a means of survival. These incidences of intergenerational prostitution are never on the government radar because they do not occur in the brothels and no pimps are involved here. The act of prostitution gets sanctioned by the community as a whole and women are forced into prostitution by the men. As the government is not aware of these acts of prostitution, there is no respite available to these women.
My current work is on the Perna community of the Najafgarh area in Delhi NCR, where most of the women (mainly daughters in law) practice socially sanctioned prostitution as an occupation. The women get married early (child marriage) and after bearing children, they are forced into prostitution (which amounts to child marriage and child prostitution). The Pernas are compelled into this situation because of a lack of alternative skills that would help them in finding dignified means of livelihood. Further, prejudice and discrimination against the DNTs in general also hinders access to dignified employment for the men and women of the Perna community.
Anuja Agarwal’s work on the Bedias portrays intergenerational and socially sactioned prostitution. Here it is the unmarried women (mostly the eldest daughter of the family) who are introduced to the profession at an early age. Similarly, the Rajnats, a clan of the Nats, (who were once associated with the princely houses) have embraced commercial sex work. Their involvement in commercial sex work has resulted in the vulnerability, deprivation and marginalization of the Rajnats.
The Kanjar community represents a case where daughters are sold off in lieu of substantial monetary consideration by parents. Often these children end up in the vicious circle of prostitution. However, the girls are not forced into the profession of sex work after their marriage. Similarly, the Bancharas are involved in prostitution, where the eldest daughter of the family usually becomes a prostitute and earns for the family.
This form of intergenerational prostitution sanctioned by the community presents a unique picture and a vicious cycle that women are unable to break. Nothing is done for them as the government is not aware of such practices. Certain NGOs have been working for their cause, but they lack proper plans to wean these DNT communities from the practice of prostitution. All such communities bear the dual stigma of the DNT status and prostitution. Communities like the Perna are forced to live on the outskirts of villages/cities. Since the children, both girls and boys, are exposed to the act of prostitution in their community from a very early age, they don’t view commercial sex work as wrong. The Perna women also displayed their agony and rage over media projections on the Perna women as sex workers, because of which they have lost interest in talking to outsiders.
This issue of intergenerational prostitution sanctioned and encouraged by a community as a whole is perhaps unique to India, and that too, to the DNTs. A more elaborate study needs to be done on this issue, so that the women forced into these acts can be freed from this tradition.
DK and MR- Thank you for taking time out to interact with us.
For 1 to 5 in Part I of the Conversation, see here.