The colonial history indicates that the British reproduced the systems of social hierarchy in their legal framework. Following several revolts from indigenous communities in India, in particular their participation in the 1857 revolt, the British focused on restricting their activities. The British increased surveillance upon them by the Thuggee Act (XXX of 1836) and Dacoity Act (XXIV of 1843).
The creation of Social Hierarchy by Britishers in India
Reference must be drawn to the statement of J. F. Stephen, legal member of the Viceroy’s Council, who in the early 1870s, stated:
“The caste system is India’s distinguishing trait. By virtue of this system, merchants are constituted in a caste, a family of carpenters will remain a family of carpenters for a whole century from now, or five centuries from now, if it survives that long.
Let us bear that in mind and grasp quickly what we mean here by professional criminals. We are dealing here with a tribe whose ancestors have been criminals since the very dawn of time, whose members are sworn by the laws of their caste to commit crime…
for it is his vocation, his caste, I would go to the extent of saying his faith, to commit crimes (from Fourcade 2003: 146).”[1]
These caste-based stereotypes were given the form of the Criminal Tribes Act of 1871.
i. Criminal Tribes Acts
The legislation of 1871 empowered the government to declare any community as “criminal tribe”. The Act provided for the “registration, surveillance and control” of “criminal tribes” and “eunuchs”. The major part of the Act operated in the North Western province, Punjab and Oudh. The Act allowed the local government, with due permission of the Governor General in Council, to designate any “tribe, gang or class of persons” as “criminal tribes” if they were deemed to be “addicted to systematic commission of non-bailable offences”.
The local government needed to give a comprehensive report to the Governor General giving reasons for declaring any tribe as criminal and also provide a manner in which these tribes would earn their livelihood. The Act authorized the local government to term a “wandering tribe” having no fixed place of residence as criminals, except in cases where they can identify a “lawful occupation” of the tribe.
The government was allowed to settle such tribes in a specified place. Subsequently, with the authorization of the Governor General, the local government will publish the declaration of criminal tribes in the local gazette in form of a notification. Such notification acted as conclusive proof of the applicability of the provisions of the Act on the tribe and debarred any judicial review irrespective of any procedural non-compliance. Members of the designated criminal tribes were required to mark their presence in a register made by the magistrate, failing which they were subjected to penalties in accordance with the provision of the Indian Penal Code.
Such a register was kept in the custody of the District Superintendent of Police. A person aggrieved by any entry in the register could request alteration by filing a complaint before the Magistrate, who had the final say. The designated criminal tribes were forced to either settle or move to another place chosen by the local government, or could be moved to any reformatory settlement. Headmen, village-watchmen and landowners or occupiers of the village were informed about the designated criminal tribes.
They were subjected to frequent checks, and their movements were closely monitored. The local government could restrict their movement within a territorial limit. The designated criminal tribes required permission to move from one place to another. They were mandated to carry “passes” which had permission to move to another specified place. The Act allowed the government to employ the individuals from designated criminal tribes “placed in a reformatory settlement”.
The Act included provisions for punitive measures against members of the criminal tribes, including rigorous imprisonment extending from six months (in first breach) to one year (in second breach), whipping, or fine, if they were found violating the Act’s provisions. It gave extensive powers to any police officer, or village watchman to arrest without warrant a person of a designated criminal tribe, if they move beyond any prescribed limits of residence without a pass.
The Act mandated “every village-headman and village-watchman”, and “every owner or occupied of land” to inform the police about the absence of a person from a designated criminal tribe or the arrival in the village of such persons “who may reasonably be suspected of belonging” to a criminal tribe. The Act also mandated creation of “a register of the names and residence of all eunuchs residing” in the territorial jurisdiction of the Act, “who are reasonably suspected of kidnapping or castrating children, or of committing offences under section [377] of Indian Penal Code, or of abetting the commission of any of the said offences”.
The “eunuchs” were required to give information of their property. The Act further provided for arrest and punishment, including imprisonment up to two years, or fine, or both, of a “eunuch”, “who appears dressed or ornamented like a woman, in a public street” or even in a private space visible from a public street, or “dances or plays music, or takes part in any public exhibition, in a public street or place of for hire in a private house”.
The Act imposed a penalty on a “eunuch”, if a boy under 16 years of age was found in his house or “under his control”. The Act also prohibited “eunuchs” of “being or acting as guardian to any minor”, “making a gift”, “making a will”, or “adopting a son”.
The provisions of the CTA were based on a stereotype which considered several marginalized communities as born criminals. By declaring them as born criminals and assuming that they are addicted to the commission of a crime, the Act restricted their life and identity in a negative way.
The Act imposed unnecessary and disproportionate restrictions on their movement. It also took away the opportunity from them to settle in a place, as it was prescribed that they could be forced to move to another place decided by the government. This was forced nomadism. The Act, further, subjected the criminal tribes to heightened surveillance, as their movements were frequently and closely monitored. It also led to social discrimination, as it imposed a stigma of born criminality.
At the same time, it gave extensive powers to local village headmen (generally higher caste) to collaborate with the police to report their movements. The Act was also based on a stereotype and further reinforced that “eunuchs” are suspected of kidnapping or castrating children. Thus, the impact of CTA was discriminatory and punitive.
Criminal Tribes (Lower Provinces) Act Extension Act, 1876
The Act was first amended in 1876 to extend its operation to Bengal.[2] The agents of landowners were also given the duty to inform the police about the presence or absence of any individual from a criminal tribe. The Act was then modified in 1897 to make the penalties more stringent Penalties for second and third convictions of individuals from the designated criminal tribes for specified offenses were imposed.[3] The amendment also empowered the local governments “to separate children of the Criminal Tribes between the ages of 4 and 18 years from their irreclaimable parents” and “place them” in specially established “reformatory settlements”.
The Criminal Tribes Settlement Act 1908
In 1908, the Criminal Tribes Settlement Act was passed, “permitting the various provincial governments of India to make plans whereby tribes suspected of living by crime could be registered and supervised by the police, and those members of criminal tribes which had been convicted could be placed in settlements.”[4]
The Criminal Tribes Act 1911
The Criminal Tribes Act 1911 repealed the earlier Act of 1871 and the amendments of 1876 and 1897. The application of the Criminal Tribes Act was extended to the whole of British India. The Act amended the law relating to the registration, surveillance, and control of criminal tribes. It strengthened the power of the local government to declare any community as a “criminal tribe” without having to seek permission of any higher authority.
However, the local government was still required to take orders from the Governor General if it wanted to restrict the movements of any criminal tribe to any specified area or settle them in any place of residence. The 1911 amendment gave additional powers to the district magistrate or any officer to order finger-impressions of a registered member of the designated tribe. The individuals belonging to such tribes were required to inform “any change or intended change of residence and any absence or intended absence from his residence”.
Further, the 1911 Act reinforced the provisions for the registration of the members of the designated criminal tribes with the authorities and regular reporting. Similarly, the Act reiterated the “duty” of “every village-headman and village-watchman” and landowners to check the activities of these individuals.
The Act also provided that the criminal tribes could be placed in any “industrial, agricultural, or reformatory settlements” to restrict their movements. The local government was also allowed to “separate and remove” children (between 6 and 18 years of age) from their parents or guardians and place them in any “established industrial, agricultural or reformatory schools”. These children were deemed as “youthful offenders” under Reformatory Schools Act, 1897.
Furthermore, the adults working in industries or children in reformatory schools could be transferred to any other similar establishment in any part of British India. A person of a criminal tribe found beyond the prescribed territorial limit or having escaped from an industrial, agricultural or reformatory settlement or school was liable for punishment.
Moreover, the Act introduced stringent penalties for non-compliance with its provisions as well as rules framed by the local government. This included imprisonment that extended to three years in certain cases, and fines extending to five hundred rupees, which was significantly high at that time. Additionally, in case of a previous conviction for offences under the Schedule of the Act, punishment could vary from seven years to transportation of life.
The Act also prescribed punishment to an individual of a designated criminal tribe, if the court was satisfied that “he was about to commit, or aid in the commission of, theft or robbery” or “was waiting for an opportunity to commit theft or robbery”.
Like the previous Act, courts had no jurisdiction to decide on the validity of the notifications issued by the local government. In 1919, based on the requests of local governments, the “Indian Jails Committee” was appointed by the Government of India to analyze the working of settlements constituted under the 1911 Act and make recommendations for better administration. The Committee stated that “the ultimate aim of the settlements should be the absorption of the settlers into the general body of the community”.
The Criminal Tribes (Amendment) Act, 1923
Thereafter, the Act was amended in 1923 to make certain additions. The criminal tribes notified by the local government of a province could be restricted or settled in another province with the approval of the government of that province. Before the internment of any criminal tribe in a settlement, a formal enquiry was required to ascertain the necessity of restricting that tribe in the settlement.
The amendment also empowered the local government to deport criminal tribes to any princely states, provided the states consented and appropriate arrangements were made to restrict the movements of the criminal tribes.
The law relating to criminal tribes was then consolidated as the Criminal Tribes Act of 1924. Another amendment to the Act happened in 1925 to clarify that if an individual from a designated criminal tribe moved to another district in the same province or to another province, he shall still be treated as a criminal tribe in that district or province. Several Indian States of pre-independent India had enacted their own local laws for the surveillance of criminal tribes.
According to the Criminal Tribes Manual of Gwalior, an individual from a criminal tribe could be convicted with rigorous imprisonment up to one year, if he kept an arm or “means of locomotion such as horses, ponies, camels, donkeys, bicycles”. The general public was prohibited from selling any arms or means of locomotion to the criminal tribes, giving shelter to an individual from a criminal tribe not having a valid pass, or lending any cash to them. Absence of an individual of a criminal tribe from his specified residence without a pass was punishable with rigorous imprisonment from one to two years or whipping with 20 to 30 stripes.
Other States’ manuals also prohibited criminal tribes from possessing any means of locomotion. The Rewa Wandering Criminal Tribes Act, 1925, applied in Vindhya Pradesh, required members of wandering criminal tribes to report at all nearest police stations in their way of travel. Failure to do so was punishable with whipping and rigorous imprisonment upto three months. The Bhopal government compelled both men and women from criminal tribes settled in different colonies to answer the roll call and give attendance to a police constable four times at night— 6 PM, 12 midnight, 4 AM, ad 6 AM.
The Effect on the lives of people from Criminal Tribes
The Act notified around 150 tribes and castes in India as criminals. This provided an affirmation of the State that any person who belonged to such a tribe was born as a criminal. Between the period 1871 and 1949, a large number of communities were registered as “criminal tribes”.
The separation of children from their families led to the destruction of their childhood and deprived them of their innocence. They were considered as young offenders. The criminal tribes were subjected to inhuman living conditions, as they were required to mark their attendance even during late nights. The idea of rehabilitation of the so-called criminal tribes also led to the exploitation of their labour.
Ostensibly meant to “reform”, the settlements provided for institutionalized incarceration. The compulsive stay in “settlement camps” led to many nomadic groups leaving their traditional livelihoods involuntarily. These camps, created by the Act, distanced the criminal tribes from mainstream society. Harsh provisions on punishment for members of the criminal tribes were imposed.
American sociologist John Lewis Gillin travelled across India to document the situation of settlement camps. He noted:
“There are four types of settlements besides the institutions for children and loose women:
(a) Industrial settlements near some large industrial plant such as a cotton mill, railroad shops, or a large tea plantation;
(b) agricultural settlements. In these settlements lands are provided by the government which the settlers are allowed to cultivate at a certain rental;
(c) forest settlements where the settlers work in the woods getting out timber and reforesting land either for the government or for private owners. So far as the Bombay Presidency and the Punjab are concerned, these are mostly government forests;
(d) reformatory settlements. The last are intended for those who cannot be trusted and who attempt to escape…
In 1919 all of British India had settlements for criminal tribes except Burma, Assam, the Central Provinces, and the Northwest Frontier Province. It is uncertain from the reports whether all of the native states have them. In the Punjab in 1919 there were twenty-six settlements besides the reformatory settlement at Amritsar. Of these, twelve were industrial, one semi-agricultural, three old agricultural, and seven new agricultural, together with three old settlements which had no supervising staffs.[5]
ii. Caste Discrimination in Colonial India
Several leaders led the fight against caste discrimination in colonial India. These included Jotiba Phule, Babasaheb Ambedkar, E.V. Ramasami ‘Periyar’, Narayan Guru, among many others. They challenged the system of caste and exploitation from multiple fronts.
In his submissions before the Southborough Committee in 1919, Dr Ambedkar highlighted how the “untouchables” faced the worst form of social disabilities:
“The untouchables are usually regarded as objects of pity but they are ignored in any political scheme on the score that they have no interests to protect. And yet their interests are the greatest. Not that they have large property to protect from confiscation. But they have their very persona confiscated. The socio religious disabilities have dehumanized the untouchables and their interests at stake are therefore the interests of humanity. The interests of property are nothing before such primary interests.”[6]
He described how “untouchability” is a form of slavery:
“If one agrees with the definition of slave as given by Plato, who defines him as one who accepts from another the purposes which control his conduct, the untouchables are really slaves. The untouchables are so socialized as never to complain of their low estate. Still less do they ever dream of trying to improve their lot, by forcing the other classes to treat them with that common respect which one man owes to another.
The idea that they have been born to their lot is so ingrained in their mind that it never occurs to them to think that their fate is anything but irrevocable. Nothing will ever persuade them that men are all made of the same clay, or that they have the right to insist on better treatment than that meted out to them.”
He then explained how “untouchability” led to the denial of civil and political rights of the caste-oppressed communities:
“The right of representation and the right to hold office under the State are the two most important rights that make up citizenship. But the untouchability of the untouchables puts these rights far beyond their reach. In a few places they do not even possess such insignificant rights as personal liberty and personal security, and equality before law is not always assured to them. These are the interests of the untouchables. And as can be easily seen they can be represented by the untouchables alone. They are distinctively their own interests and none else can truly voice them.”
Before the Simon Commission in 1928, Dr Ambedkar raised the demand of representation of caste-oppressed communities in government services. Dr Ambedkar also confronted the British government in the Round Table Conferences during 1930-32. He stated that there was no change in the material condition of the oppressed castes in the colonial period. He thundered:
“When we compare our present position with the one which it was our lot to bear in Indian society of the pre-British days, we find that, instead of marching on, we are only marking time. Before the British, we were in the loathsome condition due to our untouchability. Has the British Government done anything to remove it? Before the British, we could not enter the temple. Can we enter now? Before the British, we were denied entry into the Police Force. Does the British Government admit us in the Force? Before the British, we were not allowed to serve in the Military. Is that career now open to us?
To none of these questions can we give an affirmative answer… there is certainly no fundamental change in our position. Indeed, so far as we were concerned, the British Government has accepted the social arrangements as it found them, and has preserved them faithfully… Our wrongs have remained as open sores and they have not been righted, although 150 years of British rule have rolled away.”[7]
In his classic “Annihilation of Caste”, he stated: (emphasis added) “Caste System is not merely division of labour. It is also a division of labourers. Civilized society undoubtedly needs division of labour. But in no civilized society is division of labour accompanied by this unnatural division of labourers into water-tight compartments. Caste System is not merely a division of labourers which is quite different from division of labour—it is a hierarchy in which the divisions of labourers are graded one above the other.”[8]
Like Dr Ambedkar, other scholars have documented how the British reinforced the caste system by not interfering in the matters of caste-based customs. While in enacting the Criminal Tribes Act, the British directly applied the logic of caste, in courts, they facilitated caste oppression directly or directly. In this regard, Marc Galanter noted:
“… from the early days of the “British” legal system a group of matters that might roughly be described as family law – marriage and divorce, adoption, joint family, guardianship, minority, legitimacy, inheritance, and succession, religious endowments – were set aside and left subject to the laws of the various religious communities; i.e., the applicable law in these fields was “personal” rather than territorial.
In these family and religious matters Hindus were ruled by dharmasastra not by the ancient texts as such, but as interpreted by the commentators accepted in the locality. At first the courts relied on Brahmin pundits or sastris to advise them on the applicable rules and their interpretation…”[9]
He highlighted the practice of British non-interference as follows:
“The cases show widespread acquiescence by local authorities in the enforcement of these disabilities and suggest that active governmental support of these practices at a local level was at least not uncommon. It should be emphasized however, that these prescriptive rights and disabilities received their greatest governmental support not from direct judicial enforcement but from the recognition of caste autonomy i.e., from the refusal of the courts to interfere with the right of caste groups to apply sanctions against those who defied these usage.”
Galanter also highlighted how caste discrimination received direct support from British courts in certain cases:
“Caste groups did enjoy active support of the courts in upholding their claims for precedence and exclusiveness. Courts granted injunctions to restrain members of particular castes from entering temples – even ones that were publicly supported and dedicated to the entire Hindu community. Damages were awarded for purificatory ceremonies necessitated by the pollution caused by the presence of lower castes; such pollution was actionable as a trespass on the person of the higher caste worshippers. It was a criminal offence for a member of an excluded caste knowingly to pollute a temple by his presence.”[10]
British criminal law became intertwined with pre-colonial notions of who should be disciplined and punished.
iii. Repeal of Criminal Tribes Act
When the Objectives Resolution was placed in the Constituent Assembly, HJ Khandekar stated, on 21 January 1947:
“One thing is wanting in the Resolution, and, if the mover agrees, it can be modified. The Resolution promises safeguards and rights to all the minorities. But unfortunately there are 10 million people in India who, without any fault on their part, are described as criminal tribes from their very birth. Hundreds of thousands of men and women in India were declared as criminal tribes according to the current law. To deprive them of their rights they are declared so. No matter whether they are criminals or not, from their very birth they are made criminals. Some provision to abolish this law must be embodied in this Resolution.”
Khandekar raised the concerns of the persons who were declared as criminal tribes.
In 1947, an amendment to the Act abolished the punishment imposed on criminal tribes for second and third convictions under specified offences. As some provinces had concurrent jurisdiction on this issue, they could amend or repeal the Act in its application to their territories. The Madras government enacted the Criminal Tribes (Madras Repeal) Act, 1947 to end the application of the Act in its territory. Similarly, the Bombay government also repealed the application of the Act to its territory in 1949.[11]
The Criminal Tribes Act Enquiry Committee
By a resolution dated 28 September 1949, the Government of independent India appointed “The Criminal Tribes Act Enquiry Committee” under the chairmanship of Ananthasayanam Ayyangar. The resolution stated:
“There has been a persistent demand in the Central Legislature in recent years that the Criminal Tribes Act, 1924, should be repealed as its provisions which seek to classify particular classes of people as Criminal Tribes, are inconsistent with the dignity of free India. Some of the Provinces have already repealed the Act in its application to their areas and replaced it by other legislation, e.g., Habitual Offenders’ Acts. The Government of India consider that the question whether the Act should be modified or repealed altogether on an all-India basis should be considered after an enquiry into the working of the Act in the Provinces.”
The Committee submitted its report in 1951, after the Constitution of India came into force. After doing field inspections of several regions, the Committee concluded that “[e]xcept a few hardened criminals the other persons, belonging to these tribes, are as good as the people belonging to other communities of the same economic and social status, and desire to live an honourable life.”
The Committee further noted, “Wherever we went we heard one single cry from all the criminal tribes that whereas India obtained freedom, they continue to be in bondage and their demand for setting them free by repealing the Act was insistent”.
The stigma attached to a community declared as a criminal tribe was highlighted. The Committee noted that “criminality is not hereditary”. It was observed that the stigma and discrimination against communities declared as criminal by birth was violative of the equality framework adopted in the Indian Constitution in 1950. It was stated:
“Untouchability proved oppressive and its practice is now made illegal under the Constitution, as it involves social injustice and perpetuates discrimination. More so is the stigma of criminality by birth. Under section 3 of the Criminal Tribes Act, 1924, any tribe, gang or class of persons or any part of a tribe, gang or class who is addicted to the systematic commission of non-bailable offences can be notified to be a Criminal Tribe.
As a result of this, many tribes or parts of tribes including families who have never criminal, have been notified as criminal tribes. The children born in these notified tribes automatically become members of the criminal tribes so notified, and the members of such tribes, who may never have committed or aided in commission of any offence or even suspected of having done so, as well as newly born children of these people are thus branded as criminal and denied equality before the law and thus a discrimination is imposed against them on the ground that they belong to a tribe or a part of a tribe, which has been notified as a Criminal Tribe.
In this respect, this section would appear to go against the spirit of our Constitution… Moreover, this section gives powers to the executive to declare any tribe, part of tribe or gang or part of gang or a class of persons as a Criminal Tribe and it is provided in section 29 of this Act that no court shall question the validity of any notification issued under section 3 and that every such notification shall be a conclusive proof that it has been issued in accordance with law. We feel that it is not proper to give such wide powers to the executive.
The Act also gives powers to restrict the movements of the Criminal Tribes or to place them in settlements to the executive and by making suitable rules under the Act to take work from settlers on pain of punishment. This would virtually amount to “begar” or forced labour which is an offence under the Indian Penal Code and is opposed also to Article 23 of the Constitution.”
The Committee recommended the repeal of the Act: PART XII “The Criminal Tribes Act, 1924, should be replaced by a Central legislation applicable to all habitual offenders without any distinction based on caste, creed or birth and the newly formed States included in Parts B and C of the First Schedule of the Constitution, which have local laws for the surveillance of the Criminal Tribes, should be advised to replace their laws in this respect by the Central legislation for habitual offenders, when passed.” The Act was repealed in 1952.
The criminal tribes were then denotified, as a result of which they were known as “Denotified Tribes”.
It must be noted under the Criminal Tribes Act, several marginalized “castes” were also declared as criminal “tribes”. It is for this reason Article 341(1) of the Constitution employs the words “castes” and “tribes” while defining the Scheduled Castes.[12] After the repeal of the Act, some of the castes earlier declared as criminal tribes, have been accordingly notified as Scheduled Castes.
Reference
Sukanya Shantha v. Union of India (2024)
[1] Anastasia Pilavsky, “The ‘Criminal Tribe’ in India before the British”, Comparative Studies in Society and History
57, no. 2 (2015): 323–54, at p.326
[2] Criminal Tribes (Lower Provinces) Act Extension Act, 1876
[3] The Criminal Tribes Enquiry https://ia802807.us.archive.org/11/items/dli.csl.944/944.pdf, p. 5
[4] John Lewis Gillin, Taming the Criminal: Adventures in Penology, Macmillan Company (1931), p. 110
[5] John Lewis Gillin, Taming the Criminal: Adventures in Penology, Macmillan Company (1931), pp. 115-16, 122.
[6] B.R. Ambedkar, “Evidence Before the Southborough Committee (1919)”, in Dr. Babasaheb Ambedkar: Writings
and Speeches, Vol. 1, p. 255
[7] “Dr. Ambedkar at the Round Table Conferences”, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 2,
p. 504
[8] B.R. Ambedkar, “Annihilation of Caste”, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 47
[9] Marc Galanter, “Law and Caste in Modern India”, Asian Survey (1963), Vol. 3, No. 11, pp. 544–59, at p. 545
[10] Marc Galanter, “Untouchability and the Law”, Economic and Political Weekly (1969), Vol. 4, No. 1/2, pp. 131
170, at p. 131.
[11] The Criminal Tribes Enquiry https://ia802807.us.archive.org/11/items/dli.csl.944/944.pdf, p. 7 Committee Report (1949-50),
[12] Ibid, p. 104
214 Article 341(1) provides: “The President may with respect to any State or Union territory, and where it is a State,
after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or
groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled
Castes in relation to that State or Union territory, as the case may be.”