Redressing The Stigma.pdf

Redressing the Stigma

RESEARCH ARTICLE

Redressing the Stigma of ‘Nomadism’ and ‘Criminality’ : Underpinnings of its Omission and Incorporation in Indian Reservation Policy Dr. Swayam Panda The author is a renowned sociologist and served a term as Director, Research with the National Commission for DNT-NTs

I NTRODUCTION The experience of India’s transition from medieval feudalism to modern democracy is distinct for different communities living in different parts of the country. Alongside this political transformation, the techno-economic change brought far reaching transformation in the lives of many communities. The exposure to ‘industry’, ‘capitalism’ and ‘democracy’ rescued many communities from the age-old discrimination and suppression. For example, the social movement against Sati and Untouchability backed by legal provisions made by the State redressed some extreme forms of social injustices in Indian society. Yet, there were still numerous social groups who found themselves as targets of new forms of prejudices and exploitation that emerged during the colonial subjugation. Further, some of the traditional prejudices turned new leafs and assumed new characters. The historical account of the Denotified and Nomadic Tribes illustrate this sufficiently. A series of enactments on ‘Criminal Tribes’ and ‘Vagrants’ during the British regime caused stigmatization and marginalization of numerous communities. These communities in the course of history are bundled into and popularly known as ‘Denotified and Nomadic Tribes’. The term ‘Denotified Tribes’ stands for all those communities who were notified under the several versions of Criminal Tribes Acts enforced during the British Rule in between 1871 and 1947 throughout the Indian territory and were Denotified by the repeal of these Acts after the Independence of India. Scholars studying Crime in pre-British India write that ‘In historic past, one has the idea of social system organized by aboriginal tribes who had delinquent tendencies in a greater degree’.1 Association with criminals or anti-socials was seen as an important reason to produce delinquency in individuals. Hence, ancient seers and philosophers such as Kautilya, Manu, Yajnavalkya and Narada advised Society to keep social distance from such aboriginal groups. The Parasara Smriti 2 prevents conversation with criminally minded people to guard the moral purity and sanctity of an individual. Devala, another Smriti writer, writes that contact with a criminal for twelve months is enough to degrade the individual in the society. Hence, the practice of social isolation is an age-old practice in the Indian social system. The traditional caste system laid out detailed norms of social interaction to practice this isolation and thereby preserving the purity of social groups. It was a strong belief that if all caste groups sincerely follow swadharma or caste norms, the social offences and delinquent behavior would be

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Dr. Swayam Panda nominal. The British legislation branding certain ethnic groups rather reaffirmed this social prejudice. Nomads too have an analogous record of social isolation in Indian society. After examining Tamil literary compositions between 1 AD and 600 AD, P. K. Misra and Rajalakshmi Misra concluded, “Nomads, i.e. wandering groups of people did exist about 2000 years ago. They were mostly musicians – vocal and instrumental, jugglers known as Kazhai Kottadi, dancers, fortune tellers and beggars. They were looked upon as belonging to low class groups and hence they had to live on the outskirts of the cities or forts. They were poor, but occasionally received gifts from some king or chief.” 3 The word ‘Nomad’ is derived from the Greek word ‘nemos’ that means ‘to pasture’. Hence, originally the term ‘nomad’ referred to the people who wandered from one place to another along with their herd of animals in search of pasture land. But, now the word nomad is used as a common metaphor for all kinds of mobile people who move from place to place for earning their livelihood. It is important to distinguish the habit of aimless wandering from traditional nomadic people whose movement is never haphazard; rather it is both predetermined and systematic. Terms such as nomads and semi-nomads are applied to ‘social groups who undertook a fairly frequent, usually seasonal physical movement as part of their livelihood strategy in the recent past’ 4. The term semi-nomad is mostly used to describe those sections of nomads whose duration, distance and frequency of movement is comparatively less than others. The distinction between nomads and semi-nomads do not involve distinguishable ethnic categories or social groups, it rather describes the degree of mobility practiced by them. Hence, the term Nomad should also allude to the semi-nomads belonging to their social or ethnic stock. Nomadism is often viewed as a result of ‘laziness’ or ‘criminal tendencies’ and a sign of persistent ‘backwardness’. Nomadism is seldom understood as a major risk spreading strategy in regions where the vagaries of weather often lead to partial or total crop failures, where intensive or extensive agriculture may not be viable or ecologically sustainable.5 Hence, reference to nomads in administrative and legislative literature is mostly limited to expounding the ‘problems’ these ‘backward communities’ created for the State in its developmental aims and in finding solutions to these. The composition of the Indian society is generally understood in terms of ‘caste’ and ‘tribes’. The caste is a unique feature of Hindu social structure. Although, the term ‘tribe’ is widely used, there is no consensus on its definition. Its application at times implies assumptions of ‘isolation’, ‘primitivity’ and ‘indigenousness’, or at places suggests ‘subsistence economies’, ‘political autonomy’ and ‘cultural homogeneity’. In Indian context, what distinguishes the two terms is that, while a caste must be explicitly a part of an elaborate ranking system based on criteria of purity and pollution, a tribe does not necessarily have to be part of the ranking system, though it often is. Aparna Rao and Michael Casimir, two distinguished Anthropologists studying the nomadic communities in South Asia observe, “De facto, most tribes in South Asia, and especially in India, function as part of the vast canvas of hierarchy and repression that is represented by

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Redressing the Stigma the caste system, and, proactive policies notwithstanding, most of these communities are subject to extreme social discrimination and disentitlement.” 6 The modern India which is trying its best to break away from the caste system and establish an egalitarian and plural society has not done much to address the ‘social discrimination and marginalization of the nomads. In the era of globalization, commodities and services are controlled by ‘market’ and multinationals. This new global economic system barely allows these traditional communities to lead their own little autonomous life. Hence, many of the traditional forms of nomadism are becoming fragile. For example, folk artists of past have turned destitute today, artisans who supplied the agricultural implements or weapons of warfare are reduced to beggars, pastoralists who once owned large herds are reduced to marginal farmers, and so on. Hence, most of these communities now have become wagelabors and are pushed to margins by the industrial and market forces. Some of the communities have totally lost their traditional occupations, dignity and self-sufficiency associated with it. The ethnographic accounts which allow us to give a glimpse of their traditional vocations provide a wide range of professional activities. It reveals that some of the Denotified Tribes were nomadic and others were settled communities. The traditional vocations followed by the ‘Denotified Tribes’ who led a settled life were: Butchering and selling of meat, distilling and selling of liquor, forest tribes living through hunting and gathering, marginal agricultural communities in the buffer zone of the forest, scavenging and leather goods manufacturers, warriors or people associated with warfare, and even those who provided services to agricultural communities. The range of professions followed by the nomads is as follows: pastoral herders, foragers or hunter-gatherers, nomadic artisans, nomadic entertainers, nomadic traders, nomadic mendicants, and nomadic medicine men etc.

Occupational Displacement …It need not be emphasized that the railways had the capacity to move goods of greater bulk with greater speed and at lower cost than any means of land transport of earlier times. It has been estimated that the Banjaras, the great pack-ox transporters, moved about 1,320 million ton-kilometres of goods annually in the seventeenth century. The railways had apparently long passed this figure by 1889, and, by 1914, were moving nearly nineteen times what the Banjaras used to move two hundred and fifty years earlier, and, of course did so incomparably faster and much more cheaply. As with all industrial innovation, this naturally meant the displacement of workers employed in the preindustrial, long-distance transportation. If the Banjaras numbered 400,000 in the seventeenth century, they probably numbered half a million in c. 1850. Dispensing with these, the railways employed some 273,000 workers in 1895 (who, with dependents, formed a population of about a million.) Source : Irfan Habib, Indian Economy : 1858-1914, Vol. 28 of A People’s History of India, Aligarh Historians Society & Tulika Books, 2006, pg. 40-41.

The history of the term ‘Criminal Tribes’ is adequately described in several scholarly works,7 hence need not be repeated here. However, I would like to evoke a brief summary here for a swift recall. The earliest legal provision on regulating the criminal tribes is found in Regulation No. XXVI of 1793. The famed fiction by Taylor8 titled

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Dr. Swayam Panda Confessions of a Thug in early years of nineteenth century helped to create a popular imagery of criminal tribes. In the year 1830, the British administration created a separate ‘Thuggi and Dacoity Department’ and gave it powers of summary trials and execution to control the activities of the criminal tribes and ensure safer highways. Later when the criminal laws were consolidated to create the Indian Penal Code in 1860 and Criminal Procedure Code in 1898, several sections9 were devoted to this subject of regulating Criminal Tribes and Nomadic Communities. However, these provisions were not enough and finally the Criminal Tribes Act 1871 was enacted. The said Act in the initial years also proved to be of no use for regulating Nomadic Tribes and eunuchs, hence, several amendments were made. The legal provisions were so scattered and varied in different parts of the British controlled territories, the British Government brought a central legislation in the year 1924 to consolidate these legal provisions for Criminal Tribes. United Province Government had appointed a committee to inquire into the functioning of the Criminal Tribes Act before Independence, and it submitted its report in 1947. This report echoed the same prejudice against the Nomadic and Criminal Tribes. This committee felt that till the Gypsies settled down, they would continue the life of crime. It proposed that “Efforts should be made under sanction of law, (suitable provision may be made in the Habitual Offenders and Vagrants Act) to settle them and teach them a life of industry and honest calling as against idleness, prostitution and crime to which their conditions of existence make them prone.” 10 The habitual Offenders and Vagrants Act that the above mentioned committee envisaged proposed to contain provision for dealing with Habitual Offenders of the following three categories: i. ii.

iii.

“Those, who in spite of good environments and family traditions, become habitual criminals, Those who, because of bad environments, particularly family traditions and associations, take to life of crime according to the custom of their group and family and who are, therefore, not so much immoral as amoral, Vagrants without any settled occupations, who lead a life of crime, prostitution and idleness. Separate provisions will naturally have to be made in the Act to meet the requirements of each category of criminals; while there will be common provision too.”11

The last two categories suggested in this classification propagated the earlier definition of ‘Criminal Tribes’. The remedies sought for these three categories of Habitual Offenders were : teaching honest livelihoods, their moral rehabilitation and diagnosis of their pathological and psychological abnormalities and their scientific treatment. These correctional activities would take place within the strict discipline of a jail. In real terms, the jail became the space where these people were trapped into the exploitation of the industrial and market economy and imposed new culture and morality. With regard to vagrants or ‘Gypsies’, the committee appointed in the United Province took the view that the policy of restricting them to settlements and industrial or agricultural colonies

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Redressing the Stigma should continue with changes in the administration of these settlements and colonies. The committee further writes that “This we do, not merely with the aim of protection of society from an outbreak of crime, but in the interest of the settlers’ reform itself. Without having equipped themselves with moral anchorage, the settlers let loose, are bound to behave like derelict ships and meet a similar doom.” 12 The Criminal Tribes Act 1924 remained in force till its repeal in 1952 – five years after our Independence. During this period, two private bills seeking to repeal the Criminal Tribes Act were also introduced in the Central Legislative Assembly in 1946 and 1949. The first bill was not moved after the introductory stage as the Honorable Minister of Home Affairs gave an assurance that a committee would be appointed to enquire into the working of the Act in the Provinces and to recommend whether the Act should be modified or repealed. Consequently, an Inquiry Committee was established under the chairmanship of Ananthsayanam Ayyangar in 1949 by Resolution No. 22/1/49-Police-I, dated 28th Sept. 1949 of the Ministry of Home Affairs, the Government of India. Ayyangar’s committee recommended repealing the Criminal Tribes Act 1924 and similar provisions which declared an individual as a criminal on the basis of his caste or birth in a particular gang or class. Thus, the Ayyangar committee’s recommendations removed the legal inconsistencies that the Criminal Tribes Act had with the Constitution of India. However, it failed to redress the popular prejudice against the Nomads and the Denotified Tribes. These age-old prejudices were further battered in the form of ‘Restriction of Habitual Offenders Act’. The State policy on Criminal Tribes and Nomadic Tribes is found to have two major aspects, i.e. legislative measures to control and regulate them, and the other is to subject them to ‘welfare’ measures. The welfare measures planned are found to be always concomitant to the reasons for which they are brought under control and regulatory regimes. Thus, Ayyangar’s inquiry committee recommended several steps towards amelioration of the Criminal Tribes after the repeal of the Act. The social and economic deprivation was believed to be the reasons for their dereliction and there was fear that without welfare activities these malevolent syndromes may regenerate. It wrote, “The members of Criminal Tribes have been laboring under manifold disabilities over a long period. As a class, they are socially backward and economically depressed. It is, therefore, essential to help them to improve their conditions and also to see that those who had criminal propensities in the past but are reformed now, do not revert to crime on the repeal of the Criminal Tribes Act.”13 The Government of India accepted some of the recommendations by Ayyangar’s Committee. The Government of India repealed the Criminal Tribes Act 1924 with effect from 31st August 1952 by the Criminal Tribes Laws (Repeal) Act, 1952 (Act No. XXLV of 1952). But to keep effective control over the hardened criminals, the Habitual Offenders Act was placed in the statute books. The welfare angle of the State policy was ensured by putting these communities as Scheduled Tribes, Scheduled Castes or Backward Classes. Though these communities were fitted into the schemes of special protection and attention under the Constitution of India, they somehow

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Dr. Swayam Panda missed the attention in the national debate to eradicate specific forms of social prejudices that were the foundation of exploitation, harassment and subjugation. In order to gain an understanding as to how ‘Criminal Tribes’ and ‘Nomads’ missed the opportunity of the formation of the modern Indian State and society, we need to take a quick glance at the historical progression of the welfare and empowerment of the marginal communities in India. The history of special welfare programs for the deprived and marginalized people in the history of India can be traced back to 1885, when the Madras Government formulated the infamous ‘Grant-in-Aid Code’ to regulate financial aid to educational institutions, providing special facilities for students of depressed classes. The second major step in this direction was taken by the Maharaja of Mysore in 1918. He appointed Sir L. C. Miller, the then Chief Justice of Mysore, to recommend steps for adequate representations for non-Brahmins in the services of the State. And on recommendation of the Miller committee the Government of Mysore issued orders in 1921 extending special facilities to backward communities with regard to education and recruitment in state services. In the same year, 1921, the Madras State Legislative Council passed a resolution in favor of increasing the representation of non-Brahmins in the Government services. In 1927, this scheme was expanded by dividing all the communities in the State into five broad categories and earmarking separate quota for each category. The next example comes in 1928 from the Government of Bombay, which instituted Mr. O. H. B. Starte to identify backward classes and recommend special provisions for their advancement. This committee classified the backward classes into three categories, i.e. 1. ‘Depressed Classes’, 2. ‘Aboriginal and Hill Tribes’, 3. ‘Other Backward Classes’, and recommended special facilities regarding education and recruitment in Government services. The first systematic attempt for the political empowerment of ‘Depressed Classes’ was made with the introduction of Montague-Chelmsford Reforms of 1919, when separate representation on a number of public bodies was given to members of these classes. The Constitution therefore concentrated on the social prejudice towards the ‘tribes’ and ‘untouchables’ and treated the rest of the population as ‘poor’, described as ‘socially and economically backward classes’ in the Constitution. As a consequence, other forms of social prejudices such as there were in the case of Denotified Tribes and Nomadic Communities failed to enter the arena of constitutional considerations. In the post-independent period, the modern Indian State remained hegemonic and the Civil Society lingered its connivance and exonerated itself from any democratic obligation by shifting the blame on to these victims. The ‘Scheduled Tribes’ and ‘Scheduled Castes’ though got special protection under the Constitution of India, the ‘Other Backward Classes’ remained uncovered. Many of the Criminal Tribes and Nomadic Communities were notified as Scheduled Castes or Scheduled Tribes. Their enrollment in the SC or ST list however did not address the specific prejudices that were the foundation of discrimination and marginalization. Further, those ‘Criminal Tribes’ and the ‘Nomads’ who did not fit into the definition of the SC or ST were left in lurch continuing their fight against the ageold prejudices.

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Redressing the Stigma After Independence, the first Backward Class Commission was appointed on the 29th January 1953 under the chairmanship of Kakasaheb Kalelkar. This Commission suggested that the erstwhile ‘Criminal Tribes’ should not be called ‘Tribes’ nor should the names ‘Criminal’ or ‘Excriminal’ be attached to them. They could be simply called ‘Denotified Communities’14. The Kalelkar Committee further recommended that “these groups may be distributed in small groups in towns and villages where they would come in contact with other people and get an opportunity for turning a new leaf. This would help in their eventual assimilation in society”.15 The Kalelkar Commission tried to end the isolation and promoted their assimilation into the mainstream. The terms of assimilation were not stated in clear language. But, looking at the overall idiom of the report, it would be safe to presume that the assimilation was excessively compromising and was at the cost of their cultural identity. Thus the policy guideline proposed by Kalelkar commission undermined the democratic rights of the Denotified tribes and totally ignored their entitlement to protective discrimination as guaranteed to Scheduled castes and tribes. Let us now examine what Kalelkar Commission contemplated for Nomads. It takes special note of the ‘wandering communities’ in later part of the report: “There are a large number of small communities who eke out a precarious existence in the countryside. They have no fixed place of residence and they move from place to place in search of food or employment. They often rear pigs and poultry, hunt wild animals to satisfy their hunger and collect forest produce to make a living. They live in thatched sheds or gunny tents, and move in groups. They believe in witchcraft. Because of the insecurity of their life, some of these communities are given to crime. It should be special responsibility of Government to give them a settled life.” 16 The report also discusses the ‘traditional beggars’ or ‘religious mendicants’ who were mostly covered under the Prevention of Begging Act, another appalling enactment by the British Government.17 The Kalelkar Commission considered that the problem of beggary in India is a social and religious malice and legislation is not an effective tool to solve this. He pointed out that glorification of the alms giving is found in almost all religious denominations living in India. Beggary in Indian context is regarded as a form of insurance against crime. The popular belief is that unless you give a decent living to the able-bodied persons, you must be prepared to give alms; otherwise people will take to crime. The recommendations of the first Backward Classes Commission were not accepted by the Government due to difference of opinion about whether caste should be the basis for defining backwardness. After a detailed examination of the Commission’s report, the Government laid its copy together with a Memorandum of Action taken before each House of Parliament on September 3rd, 1956 in compliance with Article 340(3) of the Constitution. The Government did not take any concrete action on the recommendations of the Kalelkar Commission. The Government stated in this Memorandum that “the Planning Commission had already formulated the development programs for the removal of backwardness and the main point to be stressed was whether the special needs of the backward classes could be intensively and effectively served by appropriate shifts of emphasis or by rearrangement of priorities within the framework of the existing programs or whether additional programs needed to be drawn up.”

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Dr. Swayam Panda After presenting the Memorandum to the Parliament, the Government made efforts “to discover some criteria other than caste which could be of practical application in determining the backward classes. The Deputy Registrar General was asked to conduct a pilot survey to see if backwardness could be linked to occupational communities instead of caste. Such a survey was undertaken but it failed to throw up the desired criteria. The matter was also discussed at a conference of State representatives on 7th April 1959 and subsequently reviewed at a meeting of State officers convened by the Ministry of Home Affairs, but no consensus emerged as a result of these efforts. The Central Government eventually took a decision that no all India lists of backward classes should be drawn up, nor any reservation made in the Central Government service for any group of backward classes other than Scheduled Castes and Scheduled Tribes. Consequently, on August 14th 1961, the Ministry of Home Affairs addressed all the State Governments stating, “While the State Governments have the discretion to choose their own criteria for defining backwardness, in the view of Government of India it would be better to apply economic tests than to go by caste.”18 Regarding the preparation of lists of backward classes it was observed, “Even if the Central Government were to specify under Article 338(3) certain groups of people as belonging to ‘other backward classes’, it will still be open to every state government to draw up its own lists for the purpose of Articles 15 and 16. As, therefore, the State Governments may adhere to their own lists, any all-India list drawn up by the Central Government would have no practical utility.” 19 After receiving this directive from the Ministry of Home Affairs, some of the state governments set up committees or commissions to determine the criteria to be followed to identify the backward classes and prepare the list of backward classes for their respective states.20 Other states/Union Territories (Assam, Delhi, Haryana, Himachal Pradesh, Meghalaya, Orissa, Pondicherry and Rajasthan) notified their OBC list without appointing any committee or commission. These states mostly relied on the lists of OBCs maintained by them for the grant of post-matric scholarships under the Education Ministry’s scheme formulated in 1944, and another list prepared by the Commission for Scheduled Castes and scheduled Tribes at the time of drafting the First Five year Plan. In the meanwhile, the lists of Scheduled Tribes and Scheduled Castes were finalized by the Presidential Order in 1950. The list of the Scheduled Castes drawn in 1950 was a revised version of the list of SCs under the Government of India Order (SC), 1936, made under the Government of India Act 1935. This was in turn the continuation of the list of ‘Depressed Classes’ prepared by the Census Commissioner in 1931. Similarly, an attempt to list ‘Primitive Tribes’ was also made in Census of 1931, and this list was later adopted into the Government of India Act 1935 as ‘Backward Tribes’. This list of ‘backward tribe’ was adopted with some minor alterations in 1950 as the list of ‘Scheduled Tribes’. Hence, the identification and classification of the backward classes by the Government of India embark on the norms adopted in Census of 1931. In the context of enumeration of ‘caste’ and ‘tribe’ the following paragraph is worth quoting here:

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Redressing the Stigma “The column eight in the general schedule provided for an entry of ‘caste tribe or race’. The term ‘caste’ needs no definition in India; ‘tribe’ was provided to cover the many communities still organized on that basis in whose case the tribe has not become a caste; it was likewise determinate enough, and no attempt was made to define the term ‘race’, which is generally used so loosely as almost to defy definitions.” 21 Instead of providing a rigid definition of ‘depressed classes’, J. H. Hutton as commissioner of Census operations of 1931 prescribed some possible tests to be considered by the superintendents of census operations. These tests as prescribed by Hutton are as follows: 1. Whether the caste or class in question can be served by clean Brahmans or not; 2. Whether the caste or class in question can be served by the barbers, water-carriers, tailors, etc., who serve the caste Hindus; 3. Whether the caste in question pollutes a high caste Hindu by contract or by proximity; 4. Whether the caste or class in question is one from whose hands a caste Hindu can take water; 5. Whether the caste or class in question is debarred from using public convenience, such as roads, ferries, wells or schools; 6. Whether the caste or class in question is debarred from the use of Hindu temples; 7. Whether in the ordinary social intercourse a well educated member of the caste or class in question will be treated as an equal by high caste men of the same educational qualifications. 8. Whether the caste or class in question is merely depressed on account of its own ignorance, illiteracy or poverty and but for that would be subject to no social disability. 9. Whether it is depressed on account of the occupation followed and whether but for that occupation it would be subject to no social disability. 22 J. H. Hutton, who was the Commissioner of Census in 1931 further wrote on criteria followed for identification of the depressed castes: “No specific definition of depressed castes was framed and no more precise instructions were issued to the superintendents of census operations, but it was realized that conditions varied so much from province to province that it would be unwise to tie down the superintendents of census operations with too meticulous instructions. The general method of proceeding prescribed was that of local inquiry into what castes were held to be depressed and why and the framing of a list accordingly. It was decided that Muslims and Christians should be excluded from the term ‘Depressed Class’ and that, generally speaking, hill and forest tribes, who had not become Hindu but whose religion was returned as Tribal, should also be excluded and in the numbers of the exterior castes given below these principles have been followed.” 23

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Dr. Swayam Panda Thus, the variation of the social reality in different parts of Indian territory prevented the identification of ‘depressed’ and ‘exterior castes’ on the basis of a set of rigidly defined criteria. The general guidance issued by the commissioner of the Census 1931 only covered the social oppression arising out of the practice of untouchability. It did not cover other forms of social oppression such as ‘stigma of criminality’ and social exclusion and atrocities practiced against ‘Nomads’. The Census of 1931 also excluded the caste groups following Christianity, Islam and other non-Hindu religions from the list. This list of ‘exterior castes’ or ‘excluded castes’ in Census 1931 was adopted in the Government of India Act 1935. Similar trajectory was followed in the preparation of the list of Scheduled Tribes. The list of ‘Primitive tribes’ which was prepared at the time of Census 1931 to a great extent shaped the list of ‘Backward Tribes’ in Government of India Act 1935. The list was further extended in 1950 and 1956 under the Constitution of India as Schedule Tribes. Primitiveness and backwardness were the two major criteria followed as tests applied in preparing the list. In this backdrop, the State policy of ‘protective discrimination’ and ‘affirmative action’ remained narrow and selective within the colonial perception of dominant forms of social discriminations. The criminalization and social isolation of nomads was also a prevalent practice in Europe. Obviously, such formats for social discrimination that were part of the British Society and not exclusive to the Oriental social structure were completely and conveniently missed the attention. After Independence, many of the communities who remained outside the purview of the ‘reservation policy’ expressed their dissatisfaction. The Governments, as a response to this, considered several proposals to revise the lists of ‘Schedule Castes’ and ‘Schedule Tribes’ at different points. However, the policy canvas froze to the scope of the Indian Constitution. And all such claims had to be made to fit this sacrosanct policy format supported through ‘Dalit politics’ in post-independent India. Several constitutional committees who probed into the reservation issue later felt inadequacy of the said ‘policy format’ to address the issues of Nomads and Criminal Tribes. However, these observations could not impact the ‘policy format’ due to lack of political force and support from the ‘colonized civil society’. Let us take a cursory look at those opportunities when these communities narrowly missed justice, and civil society in India failed to lift its democratic credentials to a level that was not achieved even by western societies. In 1965, an advisory committee was constituted for the revision of the Scheduled Castes and Scheduled Tribes lists by Government of India under the chairmanship of Mr. Lokur. In revising the list of Scheduled Tribes the Lokur Committee looked for indications of primitive traits, distinctive culture, geographical isolation, shyness of contact with the community at large and backwardness. The committee also considered that the tribes whose members have by and large mixed up with the general population are not eligible to be in the list of Scheduled Tribes. The Lokur Committee took a stricter view in the matter of fresh inclusions in the list of Scheduled Tribes and stuck to the criteria fixed in the Government of India Act 1935. Although the Lokur Committee in general followed a strict guideline for entertaining the requests of revision of the Schedule Castes and Schedule Tribes lists, its remarks on Denotified and Nomadic Tribes were quite interesting. In the matter of defining them as Denotified and Nomadic Tribes, the Lokur Committee observed that it would be more scientific to refer to them

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Redressing the Stigma as communities. It further writes that “members of the Denotified and Nomadic Tribes possess a complex combination of tribal characteristics, traditional untouchability, nomadic traits, and an anti-social heritage.”24 The Lokur committee furthermore observed that their ‘discussion with the state governments reveal that the type of developmental schemes usually designed for Scheduled Castes and Scheduled Tribes have not benefited the Denotified and Nomadic tribes to any significant extent because of their relatively small numbers, and their tendency to be constantly on move. It is also clear that while these communities may possess some of the characteristics usually associated with the Scheduled Castes and Scheduled Tribes, the dominant factors which govern their life are their anti-social heritage and tendency to move from place to place in small groups. The Lokur committee was so convinced about the distinct characteristics of the Denotified Tribes and Nomads that it felt “it would be in the best interest of these communities if they are taken out from the lists of Scheduled castes and Scheduled Tribes and treated exclusively as a distinct group, with development schemes specially designed to suit their dominant characteristics.” 25 However, the Lokur Committee decided to maintain the status quo as, due to the limitation of time and absence of adequate information they could not decide the cases of individual communities belonging to Denotified and Nomadic Tribes. The distinctions such as ‘anti-social heritage’ and ‘tendency to move from place to place’ pointed out by the Lokur committee again reiterate the social prejudice against these groups. As the Lokur committee had observed, some of these communities who shared characteristics akin to the SCs and STs were classified in the official lists prepared in different states and Union Territories. Those who did not fit into this constitutional format were covered under ‘educationally and socially backward’ communities. The Kalelkar commission that delved into the issue of classification and identification of ‘educationally and socially backward communities’ immediately after Independence gives extensive description of communities to be considered for this purpose. The first two categories described by this commission were: “1. Those who, owing to long neglect, have been driven as a community to crime. This group is now resolved into those belonging to SC, those belonging to STs – the remained will be considered as belonging to ‘Other Backward classes’. 2. Those nomads who do not enjoy any social respect and who have no appreciation of a fixed habitation and are given to mimicry, begging, jugglery, dancing, etc.”26 Later, in 1978, Shri Morarjibhai Desai, the then Prime Minister of India, declared the constitution of another Backward Classes Commission under the chairmanship of B. P. Mandal. This commission submitted its report to the president Shri Neelam Sanjiva Reddy on 31st December 1980. The second Backward Classes Commission under the chairmanship of B. P. Mandal criticized this government policy of emphasizing the economic criteria and dismissing caste as a criterion to determine the social and educational backwardness. It strongly advocated that the caste should be the basis for determining social and educational backwardness. It wrote: “It may be possible to make out a very plausible case for not accepting caste as a criterion for defining ‘social and educational backwardness’. But the substitution of caste by economic tests will amount to

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Dr. Swayam Panda ignoring the genesis of social backwardness in the Indian society.”27 The report of the Mandal Commission was taken up for implementation by the then Prime Minister V. P. Singh in 1990. The significance of Mandal Commission’s report was that it turned the nation’s attention back to the ‘social oppressions’ inherent in the social structure of the Indian society. Ideally, this was an opportunity to address all forms of social discriminations including at least those against the nomads and the so called ‘ex-criminal’ or denotified communities. Unfortunately, the soul of the debate lost its gloss in the narrow politics and the nation failed to honor the spirit of the constitution which was committed to end social discrimination and ensure liberty and social justice to all its citizens. The Indian State missed another opportunity to expand its policy for ‘protective discrimination’ and ‘affirmative action’ in order to root out the vices of centuries old discriminatory practices in our society. B. P. Mandal brought the nation’s focus back to the caste based oppression and social disabilities inherent in the system to be considered as a relevant criteria for welfare activities by the State. However, it failed to define other dimensions of ‘social discrimination’ and ‘social prejudices’ which were not covered at the time of the making of Indian Constitution. Mandal construed the caste hierarchy having two distinct divisions, i.e. forward and backward. This two-tiered division fails to capture shades of complicity within social hierarchy within Indian society. The practices of ‘social discrimination’ and ‘impacts of social prejudices’ operate at multiple levels and result into an array of ‘social disabilities’. B. P. Mandal was reluctant to accept this multiplicity of social discrimination. This attitude is reflected in Mandal’s report in response to a fellow committee member, Mr. L. R. Naik’s suggestion to divide the list of OBCs into two sections, i.e. ‘Intermediate Backward Class’ and ‘Depressed Backward Class’. This suggestion was summarily rejected by the chairman of the committee, however a separate minute of dissent was admitted and included in the report. Mr. L. R. Naik wrote a separate minute of dissent with reference to this suggested bifurcation in the categorization of the socially and educationally backward classes of citizens. In his classification, the definitions of the ‘intermediate’ and ‘depressed’ backward classes are as follows. The intermediate backward classes are those who have co-existed since time immemorial with upper castes and had, therefore, some scope to imbibe better association. The ‘Depressed Backward Classes’ are those communities ‘whose intermingling with the Indian society was either denied, prohibited or segregated on account of stigma of nomadism or criminality’. Thus, L. R. Naik had clearly brought nomadism and criminal stigma as two unattended dimensions of discrimination practiced in Indian society into the discourse. L. R. Naik believed that “these unfortunate class of people, i.e. ‘Depressed Backward Classes’, seeped as they are in massive backwardness, would take time for their enlightenment and advancement, unless, of course, concerted efforts, at national level, are made by way of sagacious inputs of safeguards the benefits of which should be percolated to them in a large measure. So there is a compelling need to shift them carefully from the main common list and create a separate entity of equals or near-equals to bring about a healthy competition among them for the benefits of safeguards. The rest of the communities in the common list should then

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Redressing the Stigma form a distinct category for the same reason of creating an atmosphere for competition among equals for the safeguards. This device is necessary in the interest of the nation as a whole.”28 L. R. Naik made yet another important observation on a more recent dynamics in the caste system. He wrote: “During the course of my extensive tours throughout the length and breadth of India, I observed that a tendency is fast developing among ‘Intermediate Backward classes’ to repeat the treatments or rather ill-treatments they themselves have received from time immemorial at the hands of the upper castes, against their brethren. I mean, the Depressed Backward Classes. In an unequal society like ours, it is necessary that the commission takes all precautions so that the more helpless and needy segments are not deprived of the benefits of the various safeguards by avoiding cut-throat competition among unequals.”29 L. R. Naik here exposes inconsistency in the social policy of being selective about only a certain kind of social discrimination to provide preferential treatment by the State. B. P. Mandal in his covering letter addressed to the President acknowledges the relevance of these arguments introduced by Mr. L. R. Naik. He wrote, “Whereas the commission sees the point of Shri Naik’s contention, the acceptance of his approach will result in a situation which is repugnant to Article 15(4) of the Constitution. In the case of Balaji vs State of Mysore, the Supreme Court has clearly held: “In introducing two categories of Backward Classes what the impugned order, in substance, purports to do is to devise measures for all the classes of citizens who are less advanced compared to the most advanced classes in the State, and that, in our opinion, is not the scope of the Article 15(4).” ”30 Thus, the debate ignited by L. R. Naik that had a potential to expand the principle of social justice and root out the practices of social discrimination from Indian society was abruptly disbanded. The discourse which had a scope for making a progressive legislation was prematurely abandoned citing a judicial interpretation of existing laws as an excuse. The constitutional Committees that are formed with an objective to advise the legislative on understanding the realities and determine the legislative policy ought not to work as judicial organs.

C ONCLUSION The policy of reservation in India is captive of the conventional perception about the Indian social structure. The social structure in India is concomitant to the ‘caste structure’ which is a product of ‘caste system’ erected on the doctrine of a graded system of social discrimination. The conventional understanding about this ‘system of social discrimination’ reflects a gradient of ‘ritual purity’ with Brahmins at the top and the Sudras at the bottom. However, the ‘system of social discrimination’ had other dimensions and it equally despised social groups such as ‘Nomads’ and ‘Criminal Tribes’. These social groups for reasons as discussed here have remained deprived of the benefits of the reservation policy. The historical process of the formation of democratic India, though addressed some forms of social discrimination, failed to extend this benefit to these two major constituencies. Historical records also show indications that Dr. Babasaheb Ambedkar who piloted Indian policy of affirmative action was aware and even tried to some extent for

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Dr. Swayam Panda protecting the interests of nomads and criminal tribes. But, due to lack of political will from other sections of the society and absence of a leader with national prominence among nomads and criminal tribes, their interest could not be protected in Indian Constitution. The current situation of political leadership among the nomads and criminal tribes has not changed much. Though many of them are educated and have achieved economic success and social prominence in the society, yet, none of them have attained national prominence. It will be wrong to assume that these communities are not politically active. But, the issue of leadership in these communities is mostly reduced to electoral franchise, putting aside their legitimate demands and aspirations. As a result, these communities have become party pawns and this system of vote bank only serves the interest of the elites within these groups. 31 In this context, the hope really hinges on the Civil Society and the political will of the majority. The political establishment and the civil society at the time of independence had high hopes from the ‘self-rule’. It was quite natural for the national leaders to take ‘Independence’ as panacea for all social maladies as well as aspirations. That could be the reason why other forms of social discriminations were not specifically addressed in the constitutional framework. After six decades, when no such delusion exists, the civil society should take up this issue of social justice and help to generate a political will in favor of extending reservation policy to these communities. The Indian civil society should shun the complicity if any, and should not pass the buck to incompetent ‘political leadership’ from these communities nor to allow them to be victims of vested politics of vote banks.

R EFERENCES : 1. 2. 3.

Dr. V. Upadhyaya, 1978, A Study of Hindu Criminology, Chaukhamba Orientalia, Delhi, p.204 Parasara Smriti, Chapter 1, Verse 25 Nomadism in the Land of Tamil between 1 AD and 600 AD, in P.K.Misra (ed) Nomads in India, Anthropological Survey of India, Calcutta, 1982 4. Aparna Rao et al, 2003, Nomadism in South Asia, Oxford University Press, New Delhi, P. 3 5. Ibid. 6. Ibid. 7. Meena radhakrishna, 2001, Dishonoured by History : ‘Criminal Tribes’ and British Colonial Policy, Orient Longman, Delhi; Dilip D’Souza, 2001, Branded by Law, Penguin Publications, New Delhi; A. Ayyangar, Report of the Inquiry Committee on Criminal Tribes Act, 1950, Ministry of Home Affairs, Government of India, Delhi. 8. Taylor, 1839, Confessions of a Thug, Reprint by Rupa Publications, New Delhi, 2001 9. Particularly Section 109,110 of Criminal Procedure Code 1898 specifically aimed at vagrants 10. Report of the Inquiry Committee on Criminal Tribes, United Province, 1947, Government Press, Madhya Bharat, Lucknow 11. Ibid, para 36 12. Ibid, para 60

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Redressing the Stigma 13. A. Ayyangar, Report of the Inquiry Committee on Criminal Tribes Act, 1950, Ministry of Home Affairs, Government of India, Delhi 14. The Report of the Backward Class commission, 1955, Government of India Press, Delhi, para 48(1), page 36 15. Ibid, para 48(3), page 36 16. The Report of the Backward Class commission, 1955, Government of India Press, Delhi, para 135 17. Ibid, para 136 to 145 18. Govt. Order (No. ?) of Ministry of Home Affairs, 14th August 1961 19. Ibid 20. The list of the committees appointed by the state governments in this regard is presented in the table below: State Year Name of the Chairman Andhra Pradesh 1968 Shri Manohar Pershad Bihar 1971 Shri Mungeri Lal Gujarat 1976 Shri A. R. Bakshi Jammu & Kashmir 1969 Shri J. N. Wazir “ “ 1976 Dr. Adars S. Anand Karnataka 1961 Dr. R. Naganna Gowda “ 1975 Shri L. G. Havanur Kerala 1963 Shri V. K. Vishwanathan “ 1965 Shri G. Kumar Pillai “ 1970 Shri M. P. Damodaran Maharashtra 1961 Shri B. D. Deshmukh Punjab 1965 Shri Brish Bhan Uttar Pradesh 1975 Shri Chhedi Lal Sathi Tamilnadu 1969 Shri A. N. Sattanathan 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31.

Census of India 1931 (page 425, Vol. I) para 177 Ibid, page 472 Ibid, page 471 Report of the Advisory Committee to revise List of schedule Caste and Schedule Tribes, Lokur Committee, 1965, Govt. of India, Department of Social Security, page 24 Ibid, page 16 The Report of the First Backward Classes Commission, Kaka Kalelkar, 1955, para 26 The Report of the Second Backward Classes Commission, B. P. Mandal, 1980, para 1.21 Dissent Note by L. R. Naik, The Report of the Second Backward Classes Commission, B. P. Mandal, Vol. IV, page 1 Ibid The Report of the Second Backward Classes Commission, B. P. Mandal, Vol.1, cover letter to the President, page iv, para 13 See Aparna Rao (1999), Saberwal (1999), and Aparna Rao and M. Casimir (2003) among others on political trends in these communities

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