Colonial cruelty and administrative neglect: insights on the criminalisation of Adivasis in India

THE trends towards criminalisation, whether in the context of the Adivasis of India or in a general sense, tend to constitute a departure from progressive ideals of criminal jurisprudence, and the very vision laid down in the Indian Penal Code. In reflecting upon this, Professor Faizan Mustafa, Vice-Chancellor of the NALSAR University of Law laid the foundation of a fruitful discussion surrounding the launch of a new report by Indigenous People's Rights International [IPRI], titled 'Criminalisation of Adivasis and the Indian Legal System.'

The recurring theme of the report, as outlined in the introductory remarks of the launch session by IPRI Global Research Coordinator Marie Joyce Godio, was to highlight the effective criminalisation of India's Adivasi community, tracing the same back to the implications of colonial-era legislation. The purpose of researching data regarding the treatment of Adivasis by Indian legislation and administration was, in the words of IPRI Executive Director Joan Carling, to raise awareness and understanding that, despite being the world's largest democracy, India has a long way to go before it can be said to be protecting the rights of one of the world's largest indigenous populations. The sentiment was echoed by the illustrious host of panellists, who added their personal insights on the matter.

Initiating the discussion, Professor Mustafa opined that a country's criminal justice system is reflective of their civilizational progress, and held that India's criminal justice system seems to be regressing – with developments such as the recent Criminal Procedure Identification Bill reflecting such regression. He used examples to point out that if ordinary citizens are being targeted by the criminal justice system in this manner, there is little hope for marginalized Adivasis whose mere existence leads to criminality in the eyes of the administration.

After this, Senior Advocate and former high court judge Justice Anjana Prakash, praising the detailed research carried out to draft the report, held that colonial acts, such as the Santhal Parganas Tenancy Act of 1876, had features, such as granting opportunities for local self-government and economic development to Adivasis, that in her opinion did not outrightly brand the communities as inherently problematic, but nonetheless treated them as different. She continued with a scathing criticism of the treatment of Adivasis in recent times, denouncing in particular the Government of Gujarat's branding of the Gonds as "black, alcoholic and criminal" – thus also highlighting the evident regression that is exhibited in the Indian legal and administrative system's treatment of Adivasi populations.

The next speaker, Professor Virginius Xaxa, Chairperson of the High-Level Committee on Socio-Economic Health, Education and Status of Tribal Communities constituted by the Prime Minister's Office in 2014, referenced acts such as the Indian Forest Act in furthering his points regarding the criminalisation of Adivasis, holding that the Act treated Adivasis as intrinsically criminal. He lent support to a deep examination of the historical context of the treatment of Adivasis, which is rooted in decades of legal and administrative structures. He outlined two forms of colonialism that struck at the autonomy of the Adivasis – a legal and administrative structure that disregarded their rights, and the literal confiscation of the lands of the Adivasis. He emphasised that though in objective terms India is free from alien rule, the aforementioned colonial structures persist in contemporary India, necessitating a right to self-determination to be officially granted to the Adivasis – without which Professor Xaxa did not see any tangible progress occurring.

Subsequent to this, Dilip Chakma, a human rights lawyer with the Indigenous Rights Advocacy Centre, referenced the stark increase in crimes against Adivasis in recent years, whether in the form of custodial deaths (numbering seven or eight in the last nine months), forced evictions, or – through an intersectional lens – crimes against women and children. He also highlighted the significant problem of the targeting of human rights defenders who work towards furthering the rights of the Adivasis, and lamented the lack of specific data collection regarding such acts on the part of the Government.

The next speaker, José Francisco Calí Tzay, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, put forth valuable insights into the rise of authoritarianism against the backdrop of the coronavirus pandemic and its implications on increased control over Adivasi rights, and also referenced his own report on the rights of indigenous peoples in the specific context of urban areas.

This was followed by insights from Aida Martirous-Nejad, of the United Nations Office of the High Commissioner for Human Rights at Geneva, who extended the discussion to the topics of contentious legislation, such as draft legislation in Lakshadweep, among other things, that threatens the right to ownership of land among tribal communities, and the provisions of the draft Environmental Impact Assessment notifications and their implications on indigenous communities, expressing concern regarding the same and highlighting the plight of Adivasis even in modern India. She also highlighted the universal lack of recognition of tribal rights in India, and the concerns that exist in connection with the loss of affirmative action rights of Adivasi communities upon converting their religion.

Finally, Alviina Alametsa, Member of the European Parliament and Rapporteur on European Union [EU]-India relations, shared her thoughts on the problem of displacement of Adivasi communities due to development projects, and offered recommendations such as the extension of the EU-India Human Rights Dialogue and the granting of rights to Adivasis under the Indian Forest Act.

This was followed by a brief question and answer session that clarified the panellists' views, and concluding remarks by Carling.

The condition of Adivasis and their relationship with contemporary Indian legal and administrative structures is unquestionably reprehensible. The criminalisation of identities, and of the very existence of these communities is something that, as each of the panellists consistently pointed out, has persisted over the decades, long after the fall of colonial rule and the establishment of modern Indian democracy along the stated lines of Constitutional values. The IPRI report deftly covers these concepts and provides a great foundation, as mentioned by Justice Prakash, upon which lawyers and lawmakers could build in furtherance of a more inclusive society.

Click here to view the IPRI report titled 'Criminalistation of Adivasis and the Indian Legal System', and here to view an executive summary of the report.