Guest Post by Anuja Agrawal
The recent reports regarding the findings of the Death Penalty Project of the National Law University, Delhi, confirm some of the worst fears we have about our criminal justice system: the system is exceedingly tilted against the interests of the poor, disadvantaged and the marginal while the rich and the advantaged often get away, literally, with murder. The results are very important as such systematic studies help in confirming what are often vague impressions and unconfirmed suspicions.
While this study focuses only on the convicts on death row, what we urgently need is data which give us a caste and community wise breakup of the incarcerated population as a whole. While some may think that this would be useful in establishing the ‘criminality’ of some social groups, in fact this data, when juxtaposed with degrees of conviction, will help in establishing not only the conditions in which people take to criminal activities but also how our system is systematically biased towards particular groups.
It is not farfetched to imagine that the Death Penalty Project’s findings will be replicated at the level of this bigger data, a data which we don’t yet have. The modes of data collection by bodies such as National Crime Records Bureau (NCRB) are not very useful and can hardly be seen as based on ‘objective’ categories of classification. This official body seems to have an interest in creating a data base which allows the bigger picture of crime in India to become clear given only to the extent that it is ‘mandated to create, maintain and disseminate a secure national database on crime and criminals for law enforcement agencies’ (See home page of NCRB website). What we can learn and what we cannot learn from NCRB record remains determined by what is or is not considered important from the point of view of the state. Whether this is a product of some political exigencies, the ideas of a hardnosed ‘criminologist’ or a bored bureaucrat, we can only speculate about.
While we continue to hope that official bodies such as NCRB might one day be a source of more socially and politically relevant data on the character of crime and ‘criminals’ in this country, it is useful to remind ourselves that at least one segment of Indian population is very sensitive to the systematic bias of our current modes of maintaining ‘order’. We tend to be largely oblivious to the fact that the denotified communities, many of whom have been unable to shrug off the stigma of criminality which the notorious Criminal Tribes Act of 1871 attached to them, continue to be treated with much contempt by both, the society and the state. And this is often manifested in their being disproportionately held responsible for the wrongs happening in our society.
As already stated above, we do not have any systematic data which can prove this as after their denotification in 1952, the Indian state did nothing to keep a track of the condition of these communities. Writings and work of those associated with DNTRAG such as Mahashweta Devi and Ganesh Devy ( Both are also founder of Budhaan theatre) and Laxman Gaikwad have done much to bring to light the condition of these forgotten people in the late 1990s and early 2000s. More recently reports by other groups active among denotified communities are also providing a strong indication that the stigma of criminality attached to these groups is continuing and perhaps even becoming more pronounced. By paying attention to what these reports are telling us we will learn what the official statistics fails to tell us.
A Study Report on Persecution of Ex Criminal Tribes has been brought out by Sangharsh Wahini, Bhatke Vimukt Sangharsh Parishad, a Nagpur based collective of activists working for the denotified communities in Maharashtra. The authors of the report which was completed in 2014, state that this is a ‘bail application’ for those members of the community for whom prison has become like a ‘second home’. The report focuses on the Pardhi community which is one of the most ostracized and impoverished denotified community in Maharshtra. A forest tribe, Pardhis, just like many other denotified tribes, claim to have played a critical role in the revolt of 1857. It is very disturbing that the report suggests that perhaps the present condition of Pardhis is worst than their condition during the British times.
It is important to note the modus operandi of the police which often works against the interests of communities such as Pardhis. When a theft is reported, the complainant often does not name any suspect. In regions of their habitation, such complaints become an occasion for the police to raid the Pardhi hamlets from which people are randomly picked up and charged. While the accused may get bail with great difficulty, once arrested they are permanently on the police radar. Police also take away any valuables that they may find with these people and insist on production of receipts which most people including middle and upper classes will be unable to produce under similar circumstances. All such booty is either treated as stolen property or becomes ‘police property’ (of course, there is nothing official about this).
Independent sources have also reported to the author that the police often seek compliance from complainants of thefts in their attempts to pin the crime on persons of their choosing. In areas where denotified communities are concentrated, they are often likely to be such chosen ones. It is also notable that, as reported in the Sangharsh Wahini study, many of the Pardhis are booked under section 122 of the Bombay Police Act (1951), i.e. ‘being found under suspicious circumstances between sunset and sunrise’ or under section 124 which is about ‘possession of property of which no satisfactory account can be given’. Both of these provisions put the onus of proof on the accused and have a jarring resonance with provisions of Criminal Tribes Act. It is ironic that, as the study reports, members of Pardhi community when caught in the police net often beg to be booked under 122 as its provisions regarding punishment are seen as relatively less severe.
The study found more than 874 cases registered against members of approximately 116 Pardhi families residing in four hamlets. This is an average of eight cases against each family. Of these about 136 cases were against Pardhi women. There were some individuals who had almost thirty cases filed against them and families in which there were a total of more than fifty cases against various members.
The maximum number of cases are under section 380 of the Indian Penal Code which is about ‘theft in dwelling house’ and section 457 which is about ‘Lurking house-trespass or house-breaking by night’. While most of the cases had been disposed by the courts by the time of this study, some were still pending.
More significantly many of the accused ended up with jail terms far exceeding the punishment mandated for the crimes they were accused of. Many faced years of trial for what appear to be ridiculously trivial pretexts. Three Pardhis thus faced a four year trial for the theft of ten Chickens and Rs 150. Two people suffered a jail term for 16 years during which one of them died. They were accused of stealing two sets of linen, one pillow cover and Rs.50 in cash! One man was even booked for possessing a motor bike which he had duly purchased and which no one had reported as stolen! There are many other instances in the Sangharsh Wahini Report which make us squirm uncomfortably about the status of our police and judiciary.
It is not even surprising that Maharashtra Control of Organised Crime Act (MCOCA) which is widely seen as a reincarnation of Terrorist and DisruptiveActivities (Prevention) Act better known as TADA, is used to implicate a number of Pardhis. A total of 187 cases had been registered under MCOCA against members of Pardhi and Banjara communities in nine districts of Maharashtra between 2007-2014. Like TADA , the use of MCOCA disproportionately empowers the state agencies.
This relatively small study thus presents enough facts which are very disturbing from the point of view of social justice. What might a larger data about the accused, arrested, jailed and incarcerated have in store for us, we can begin to imagine, although such imagination is bound to be tinged with horror.
Anuja Agrawal is an Associate Professor at the Department of Sociology, Delhi School of Economics, University of Delhi