THE violence of the current political dispensation has pushed for the mainstreaming of coinages such as ‘political prisoners’ and ‘human rights defenders’. There is, of course, an urgent need to visibilise such categories within the contemporary civil liberties discourse. But, a singular focus on these categories can prove to be deficient and discriminatory.
The discourse mainly advanced by Brahmin-Savarna liberal academics, legal practitioners and civil society organisations, which endow certain individual dissenters (mainly Brahmin-Savarna) with politicity, invisibilises and de-politicises communities with a traumatic history of dissent and systematic persecution. Many marginalised castes (castes lower in the hierarchy) and tribes have a shared history of dissent against the colonial regime which colluded with the existing Brahminical social order.
Brahmanism and the pre-colonial foundation of dissent
Dr Babasaheb Ambedkar’s writings provide a framework to understand the pre-colonial foundations that led to colonial and post-colonial criminalisation of certain communities. Rejection of the Brahmanic chaturvarna system is what made them dissenting communities.
The discourse mainly advanced by Brahmin-Savarna liberal academics, legal practitioners and civil society organisations, which endow certain individual dissenters (mainly Brahmin-Savarna) with politicity, invisibilises and de-politicises communities with a traumatic history of dissent and systematic persecution.
In ‘Revolution and Counter-Revolution in Ancient India’, Dr Ambedkar traces this dissent to the embracing of the larger egalitarian Buddhist tradition. He adduced that the infamous law of Manu is the gospel of Brahminist subjugation of the Buddhist tradition. Manusmriti refers to “Non-Aryans” and “excluded-Aryans”, who dwell “outside the village”, “on burial grounds, mountains and in groves”, wearing “garments of the dead”, and wandering “from place to place” as criminal communities. It is clear that the reference is to Avarna communities like Dalits, Adivasis and nomadic and wandering tribes.
‘Dissenting communities’ in the colonial and post-colonial regime
The colonial legal system was based on the Victorian notion of ‘hereditary criminality’, and as research scholar Mukul Kumar argues, these notions found a “suitable refuge” in what the Brahmanic social order prescribed. Crime came to be seen as an inter-generational occupation of many marginalised castes, tribes and nomadic communities.
It is relevant to mention how close to 200 communities (lower castes and tribes) and the transgender community were branded ‘hereditary criminals’ by colonial laws, most prominent of which was the Criminal Tribes Act, 1871. The law systematically registered many itinerant craftsmen, entertainers, peasants, nomadic and forest tribes as ‘criminal tribes’, subjecting them to warrantless arrests, special surveillance and penal measures. Therefore, the colonial and pre-colonial criminalisation of such communities is a consequence of their dissent against the acceptable Brahmanical social and political life.
The dissent of marginalised castes and tribes against their Brahmanist-colonial subjugation is evidenced from their disproportionate criminalisation in the post-colonial criminal justice system. Recent National Crime Records Bureau data shows that close to 66 per cent of prison inmates in the country belong to the administrative Scheduled Castes [SCs], Scheduled Tribes [STs] and Other Backward Classes [OBCs] categories. The Death Penalty India report shows that three quarters of death row prisoners are from lower castes, tribes and religious minorities. The National Commission for SCs’ 2016 report on atrocities against the Kuravan community in Tamil Nadu found that every Kuruvan (ex-criminal tribe/ denotified tribe) person is booked in an average of five criminal cases in her lifetime.
Despite such staggering data showing evidence of the criminalisation of ‘dissenting communities’ (spread across the administrative categories of SCs, STs and OBCs), they have been under-recognised in the mainstream discourse on dissent.
The erasure and de-politicisation of dissenting communities is casteist, but it also does great disservice to the larger civil liberties discourse. It implies that some lives are more worthy of freedom than others, thereby creating a hierarchy among the incarcerated. Additionally, it erases the historic injustice against ‘dissenting communities’ and invisibilises their continued plight. Consequently, the Brahmanical system responsible for the over-criminalisation of the marginalised is normalised. The civil liberties discourse therefore lacks any meaningful interventions against the systems and processes responsible for unjust incarceration.
The erasure and de-politicisation of dissenting communities is casteist, but it also does great disservice to the larger civil liberties discourse. It erases the historic injustice against ‘dissenting communities’ and invisibilises their continued plight. Consequently, the Brahmanical system responsible for the over-criminalisation of the marginalised is normalised. The civil liberties discourse therefore lacks any meaningful interventions against the systems and processes responsible for unjust incarceration.
It is ironic that the mainstream civil liberties discourse in India supports anti-race civil liberties articulations as was seen during the #BlackLivesMatter movement. However, they completely ignore the caste-colonial underpinnings of civil liberties in India.
Normalized misuse of laws against dissenting communities
One of the most dangerous fall-outs of mainstreaming categories like ‘political prisoners’, is that it rarely looks at the misuse of laws other than sedition and the Unlawful Activities (Prevention) Act [UAPA]. Many seemingly innocuous provisions in the Indian Penal Code [IPC], Criminal Procedure Code and laws like the Habitual Offenders Acts, Anti-Begging Acts, Excise Acts and Gambling Acts in several states have been wielded as dangerous tools by the State and police machinery to implicate and target Dalit, Adivasi and Vimukta (ex-criminal tribes) communities.
An amendment to Sections 332 (voluntarily causing hurt to deter public servant from his duty) and 353 (assault or criminal force to deter public servant from discharge of his duty) of the IPC in Maharashtra became a tool for rampant misuse of these sections by police officials to criminalise and harass thousands of Dalits protesting the violent attack in Bhima-Koregaon in 2018. In over 655 first information reports [FIRs] registered by police against Dalit protesters across Maharashtra, close to 11 thousand “unnamed Dalits” became potential targets of the State. The amendment had made these offences non-bailable, enhanced punishment from two to five years and made the offences triable by a Sessions Court. A year after the registration of FIRs against Bhima-Koregaon protesters, the police began combing action, arresting, summoning and sending externment (tadipar) notices to Dalit protesters.
A study by the Criminal Justice and Police Accountability project, Bhopal-based research and litigation intervention, shows how excise laws are being misused to target Adivasis and Vimuktas (ex-criminal tribes) in Madhya Pradesh. The traditional association of these communities with Mahua and liquor for self-consumption becomes a fertile ground for their exploitation by the police under the Excise Act.
Another example is the Maharashtra Prevention of Begging Act, 1960 which equates certain traditional nomadic occupations, such as street performing, with begging, and criminalises the labour of communities like Dombaris, Madaris and Nats. Pardhis, whose traditional hunting occupation has been criminalised under the Wildlife Protection Act, have been systematically ousted from forests and rendered ‘homeless’ by the State. The community has taken to selling flowers, toys and books, among other things, at traffic signals, and resides in temporary shanties alongside footpaths or under flyovers. This, almost always, subjects its members to harassment and detention under the begging laws. A second conviction under the Maharashtra Prevention of Begging Act requires mandatory ten years’ incarceration at a beggars’ institution, part of which may be spent in prison.
The case of Pardhi community is a classic example of how the State brands members of a community as ‘born criminal’ by way of a law, then criminalises their traditional occupation, ousts them from their forestlands, and further goes on to criminalise the only mode of survival available to the community. Scholars have suggested that Pardhis were registered under the Criminal Tribes Act, 1871 following their participation in the 1857 struggle against the British.
De-politicisation in media representation
Furthermore, the level of erasure can also be seen in the manner in which the resistance of ‘dissenting communities’ is portrayed by the mainstream media and civil society. For instance, even when Adivasis are booked under sedition law and UAPA, they are never referred to as ‘political prisoners’ but as merely ‘Adivasi activists’. The resistance of the Kumi Sikakas and the Hidme Markams of our nation is not just against State usurpation of their land and resources, but also about their political claims as equal citizens of the country. How is this resistance/dissent and their systematic incarceration not ‘political’?
The civil liberties discourse cannot be limited to the fascist nature of the State. It must question and counter the fascist nature of society which erodes civil liberties every day.