15 August 2017 will mark the 70th anniversary of India’s ‘tryst with destiny’. On this day in 1947, the British colonial government transferred power amid celebrations and violence. Thousands gathered outside the Red Fort in Delhi to watch as India’s first Prime Minister Jawaharlal Nehru hoisted the independent nation’s flag. Numerous jails were flung open and prisoners across the country walked free to mark the occasion. But not everyone was able to participate in these celebrations. At the stroke of midnight, as India awoke ‘to life and freedom’, Khanu Sansi remained interned within the walls of Amritsar’s Reformatory Settlement, a penal institution used to house the most ‘incorrigible’ of India’s so-called ‘criminal tribes’. The moment of independence did not represent his transformation from colonial subject to sovereign citizen, or throw off the shackles and bondage of colonial rule. For Khanu and the estimated two and a half million individuals named as ‘criminal tribes’ in 1947, freedom would take another 5 years and 16 days – until 31 August 1952 – when the Criminal Tribes Act was repealed.
Criminals by birth?
Enacted in 1871, the Criminal Tribes Act was one of empire’s most draconian yet relatively unknown pieces of legislation. It was premised on the belief that crime was a hereditary occupation practised by specific communities, each with their own modus operandi: Sansis were ‘addicted to theft, cattle-stealing and house-breaking’; Kanjars were ‘burglars and robbers’; Chapparbands were ‘counterfeiters’. Once marked, communities could be subject to a raft of surveillance and punitive measures: daily reporting to the local police, restriction within village boundaries, internment in reformatory or industrial settlements, and the separation of children from their parents.
The Act targeted a diverse range of communities. Some groups, like Bawarias and Kanjars, had long-standing practices of thieving, loot and plunder that formed part of complex, pre-existing rural power relations. Others, like Koravars and Banjaras, were forced into petty theft as the expansion of empire altered local economies and rendered their occupations untenable. By the 1920s, groups like Pernas and Ods whom had earlier been dismissed as criminal were brought under the Act as their nomadic lifestyles proved a nuisance to settled society.
The marking out of communities as ‘criminal’, therefore, was a process underpinned by shifting notions of what constituted ‘crime’ and who could be considered a ‘criminal’. Although shaped by the contingent concerns of the colonial project, the process was necessarily informed by interactions with indigenous actors. The Act was rooted in imperial anxieties regarding law and order, and the desire to craft moral and loyal subjects. But it was also ridden with inconsistencies in its ideology and administration. From the start, officers in the districts questioned its efficacy, whilst courts questioned its legality. Yet, it foregrounded the idea of the ‘criminal tribe’ as a specific subject-citizen, one whose relationship with the state was predicated upon their supposed inclination for crime.
A ‘monstrous provision’
From the 1930s, as the nationalist movement swept the country, the Act came under increased scrutiny and criticism. In the words of Jawaharlal Nehru, at a speech in Nellore in October 1936:
‘No tribe could be classified as criminal as such and the whole principle is out of consonance with all civilised principles of criminal justice and treatment of offenders.’
But whilst many were quick to denounce the Act as evidence of colonial brutality, few questioned the criminal stereotype. Even the champion of the lower castes and ‘untouchables’, Dr B.R. Ambedkar, in his Philosophy of Hinduism, described the ‘criminal tribes’ thus:
‘It is essential to emphasise the great part played by crime in the general life of these people. A boy is initiated into crime as soon as he is able to walk and talk.’
From the 1940s, the question arose of the Act’s reform or repeal. This took on heightened significance in the context of independence. How could the Indian government reconcile the inhumanity of classifying whole communities as criminal with the pervasive belief amongst lawmakers, politicians and wider society that these communities – whether for socio-economic reasons or cultural mores – were somehow more inclined towards crime? As Nehru stated, ‘Left to themselves suddenly, they might drift into wrong courses.’
It was during the transitional years between 1947 and the early 1950s that the Fundamental Rights of the citizen were codified within the Constitution and the government pledged itself to protecting and ‘uplifting’ the ‘weaker sections’ of society. Yet, for five years after independence, the ‘criminal tribes’ remained interned in penal and labour settlements, and subject to supervisory and punitive measures.
After prolonged debate, the Criminal Tribes Act was eventually repealed across India on 31 August 1952. These communities, now ‘denotified’ from their criminal status, obtained ‘freedom from their 80-year-old bondage’. But this was a contested and incomplete freedom. The Act was replaced by a series of provincial Habitual Offenders legislation which effectively reproduced the colonial frameworks of surveillance and control. And the ‘steel frame’ of the Raj was inherited largely intact, meaning that the same government officers were responsible for implementing the ostensibly liberalised agenda of the postcolonial state.
In Pakistan, the Criminal Tribes Act was repealed four years later in 1956. During the Partition of the subcontinent at the moment of independence in 1947, ‘criminal tribes’ formed part of the millions who migrated across the India-Pakistan border to seek refuge and new futures. Hindu and Sikh communities, like Bazigars, Sansis and Bawarias, migrated to India, whilst Muslim communities, like Bilochis and Ods, migrated to Pakistan. Just as prisoners were swapped between the two nations in the years that followed, so too were incarcerated members of ‘criminal tribes’.
A Delayed Independence
Since the 1950s, denotified communities in India have celebrated vimukti diwas (Liberation Day) on 31 August. But in more recent decades, they have taken a more decidedly political stance as the promise of freedom appears increasingly hollow. Incidences of police brutality and vigilante justice are rife as the stigma of criminality looms large in the communities’ lives. According to a member of the Gihara community interviewed in Delhi in May 2016,
‘Even today, we are labelled with Offenders Act – in case of any dacoity [robbery], offence or illegal act, we are detained and sent behind bars.’
Although conditions vary across India, successive commissions have recognised that these 20 million individuals are amongst the most marginalised and underprivileged in the country. Often found living in temporary encampments on the side of the road, opportunities for education and employment are scarce. Some communities have been forced into inter-generational prostitution. Others had their traditional occupations – as performers, snake charmers, magicians – criminalised as beggary. Those who can access education often favour training as lawyers, given their community’s frequent embroilments with the police.
The motif of a delayed freedom has become the rallying cry of a contemporary political movement which mobilises denotified communities from across India to agitate for their rights. In the words of a Gihara community member:
‘15 August 1947, India got freedom but we DNT [denotified and nomadic tribes] celebrate our freedom on 31 August 1952’.
Last year, denotified communities celebrated vimukti diwas in locations across Delhi, Rajasthan, Bihar, Maharashtra and Gujarat. This August, as India celebrates 70 years of independence, the denotified communities will commemorate their own anniversary: 65 years since the Act’s repeal. Across the country, these highly diverse communities who are bound together by a common stigma of criminality will use the occasion of vimukti diwas to celebrate their moment of freedom but to also protest continued marginalisation. An ongoing British Academy-funded project based at the University of Leeds will be documenting these celebrations and exploring the alternative histories of India’s independence.