The classification of “habitual offender” emerged prior to the repeal of the Criminal Tribes Act. Several Provinces had enacted their habitual offender laws. The Madras Restriction of Habitual Offenders Act, 1948 applied to individual habitual offenders.[1] The Act neither required a notified offender to attend roll call to any authority nor provided for taking finger impressions of such offender.
However, once a person was notified under the Act to be a habitual offender, “no opportunity” was given to him “to defend himself against orders of restriction or internment in a settlement”. Contrary to the Criminal Tribes Act or the Madras Restriction of Habitual Offenders Act, the Bombay Habitual Offenders Restriction Act, 1947 granted power to only competent courts to pass restrictive orders after necessary legal proceedings. Under the Madras law, such orders could be passed by government or officers authorised by them.
The Rajasthan Habitual Criminals (Registration and Regulation) Act, 1950 defined “habitual criminal” as “a person who being a member of a notified tribe” who within the prescribed period, has not “been declared by an order in writing of the District Magistrate as no longer a habitual criminal”. Further, it included “a person, who whether he was a member of a notified tribe or not, has within any period of ten years following the aforesaid date, been convicted not less than thrice of any of the offences specified”.
The Rajasthan Act gave “too much discretion” to the District Magistrate. A biased officer may never declare any members of a Criminal Tribe as “no longer habitual criminals” even if they may not have any convictions at all. The Rajasthan Act was “hardly any improvement” from the Criminal Tribes Act.
The Criminal Tribes Enquiry Committee
The Criminal Tribes Enquiry Committee, while recommending the repeal of the Criminal Tribes Act, suggested enactment of a central habitual offender legislation. However, it stated that “a person should not be branded as a habitual offender merely on grounds of suspicion”.
In his oral evidence before the Committee, a deputy inspector general rank officer from Bihar stated, “In some of the democratic countries of the world, the surveillance kept over even hardened criminals is not done in the way in which we do it India, and a time should come when no criminal should know that he is really being followed or pursued”.
The Committee recommended that “a person who has been convicted twice for any non-bailable offences under Chapters XII, XVI and XVII of the Indian Penal Code including an order under section 118 of the Criminal Procedure Code should be considered a habitual offender for the purposes of the new Act”.
The Committee was of the view that provisions similar to sections 23, 24, 26, and 27 of the Criminal Tribes Act should not be included in the new Act.
After the repeal of the Criminal Tribes Act, several States enacted new habitual offender laws in their jurisdictions. Significantly, most States adopted an identical definition of “habitual offenders”, referring to a person who has been sentenced on conviction for at least three occasion to “a substantive term of imprisonment” for any of more of the specified offences.[2]
Similarly, the respective State legislations conferred power on the government to direct the District Collector to make a register of habitual offenders within his district by entering the names and prescribed particulars of such offenders. These Acts also oust the jurisdiction of courts to review the validity of any direction or order issued under the Acts.[3]
Furthermore, the District Collector or any officer authorised by him in this behalf may at any time order the finger and palm impressions, foot-prints and photographs of any registered offender to be taken.[4] Several of these Acts require the notified offenders to share their residential details, and may also restrict their movements.
The “habitual offender” legislations were enacted to replace the Criminal Tribes Act. However, in States such as Rajasthan, they were used to refer to members belonging to criminal tribes/denotified tribes. Applying that logic, several Prison Manuals/Rules have also referred to “habitual offender” to mean members of Denotified Tribes or wandering tribes.
The court in ‘Sukanya Shantha v. Union of India (2024)’, declared this as not acceptable.
The Court said,
‘A whole community ought not to have either been declared a criminal tribe in the past or a habitual offender in the present. It would not be wrong to say that the classification of “habitual offender” has been used to target members of Denotified Tribes.
Various habitual offender laws enacted by States are not under challenge before us in the present. Hence, we shall not deal with their validity. However, the classification is constitutionally suspect, given the vague and broad language various laws and rules have employed, which is used to target the members of Denotified Tribes. The Criminal Tribes Enquiry Committee had noted that no person can be declared as a habitual offender merely on ground of suspicion. But the same has happened, as the vague language employed leaves the discretion for the authorities to declare persons as habitual offenders merely on the ground of suspicion.
We urge the State governments to reconsider the usage of various habitual offender laws, i.e. whether such laws are needed in a constitutional system. In the meantime, the definition of “habitual offender” in the prison manuals/rules shall be in accordance with the definition provided in the habitual offender legislation enacted by the respective State legislature, subject to any constitutional challenge against such legislation in the future.
In case, there is no habitual offender legislation in the State, the references to habitual offenders directly or indirectly, as discussed in this judgment, are struck down as unconstitutional. The Union and the State governments are directed to make necessary changes in the prison manuals/rules in line with this judgment.’
Reference
Sukanya Shantha v. Union of India (2024)
[1] The Criminal Tribes Enquiry https://ia802807.us.archive.org/11/items/dli.csl.944/944.pdf, p. 92
[2] Tamil Nadu Restriction of Habitual Offenders Act, 1948 (previously Restriction of Habitual Offenders Act1948);
Madhya Bharat Vagrants, Habitual Offenders and Criminals (Restrictions and Settlement) Act, 1952; Orissa
Restriction of Habitual Offenders Act, 1952; Uttar Pradesh Habitual Offenders Act, 1952; Rajasthan Habitual
Offenders Act, 1953; Jammu and Kashmir Habitual Offenders (Control and Reform) Act, 1956; Bombay Habitual
Offenders Act, 1959; Gujarat Habitual Offenders Act, 1959; Kerala Habitual Offenders Act, 1960; Karnataka
Habitual Offenders Act, 1961; Andhra Pradesh Habitual Offenders Act, 1962; Himachal Pradesh Habitual Offenders
Act, 1969; Goa, Daman and Diu Habitual Offenders Act, 1976;
[3] Section 19, Andhra Pradesh Habitual Offenders Act, 1962; Section 15, Tamil Nadu Habitual Offenders Act, 1948;
Section 22, Goa, Daman and Diu Habitual Offenders Act, 1976; Section 22, Gujarat Habitual Offenders Act, 1959;
Section 22, Bombay Habitual Offenders Act, 1959; Section 21, Himachal Pradesh Habitual Offenders Act, 1969;
Section 23, Jammu and Kashmir Habitual Offenders (Control and Reform) Act, 1956; Section 18, Karnataka
Habitual Offenders Act, 1961; Section 18, Kerala Habitual Offenders Act, 1960; Section 12, Orissa Restriction of
Habitual Offenders Act, 1952; Section 14, Rajasthan Habitual Offenders Act, 1953
[4] 302 Section 6, Andhra Pradesh Habitual Offenders Act, 1962; Section 6, Goa, Daman and Diu Habitual Offenders
Act, 1976; Section 6, Gujarat Habitual Offenders Act, 1959; Section 6, Bombay Habitual Offenders Act, 1959;
Section 6, Himachal Pradesh Habitual Offenders Act, 1969; Section 9, Jammu and Kashmir Habitual Offenders
(Control and Reform) Act, 1956; Section 6, Karnataka Habitual Offenders Act, 1961; Section 6, Kerala Habitual
Offenders Act, 1960; Section 4, Rajasthan Habitual Offenders Act, 1953;